Palmer v. State

• Decision Date: 19 December 2002
• Docket Number: No. 36996.,36996.
• Citation: Palmer v. State, 59 P.3d 1192, 118 Nev. 823 (Nev. 2002)
• Parties: Scott A. PALMER, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

59 P.3d 1192

118 Nev. 823

Scott A. PALMER, Appellant, v.The STATE of Nevada, Respondent.

No. 36996.

Supreme Court of Nevada.

December 19, 2002.

Richard F. Cornell, Reno, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Joseph R. Plater III, Deputy District Attorney, Washoe County, for Respondent.

Before YOUNG, C.J., ROSE and AGOSTI, JJ.

OPINION

PER CURIAM.

AppellantScott A. Palmer argues in this appeal that the district court erred in denying his post-conviction petition for a writ of habeas corpus.Palmer contends, among other things, that his guilty plea was not knowingly entered because he was not informed that he would receive a special sentence of lifetime supervision as a consequence of pleading guilty to attempted sexual assault.

We conclude that lifetime supervision is a direct consequence of a guilty plea.Therefore, when a defendant pleads guilty to an offense that is subject to the lifetime supervision provisions, the totality of the circumstances in the record must demonstrate that the defendant was aware of the consequence of lifetime supervision before entry of plea.Because the record is silent with respect to whether Palmer was advised that he would be subject to lifetime supervision, we reverse the order of the district court denying Palmer's petition and remand this matter for an evidentiary hearing.

FACTS

The following facts were adduced from testimony presented at the preliminary hearing.On March 6, 1998, K.B., a fifteen-year-old girl, went to a birthday party at her friend's apartment in Reno, Nevada.At the party, K.B. consumed five to seven wine coolers.The last thing she remembered, prior to passing out from the consumption of alcohol, was dancing with her friends.When K.B. awoke in the morning, she was in bed wearing only her underwear and bra.K.B.'s inner thigh and vagina ached.She told her friend: "I think I slept with [Palmer]."

Palmer was twenty-four years old at the time of the party.In the past, he had made numerous sexual advances towards K.B., which she rebuffed because she had a boyfriend.On the night of the party, K.B.'s friend observed Palmer touching K.B.'s breast and vaginal area while she was passed out.The friend told Palmer to stop touching K.B., and eventually after several minutes, Palmer stopped.Later, in the middle of the night, the friend noticed that K.B. was no longer in the bed where she had earlier passed out, but assumed that she was merely using the bathroom.The next morning, the friend discovered that K.B. had not been using the bathroom, but apparently had been sexually assaulted by Palmer.

Later on that same day, one of K.B.'s other friends, who had also been at the party, told K.B.'s boyfriend about the alleged sexual assault.A fight ensued between Palmer and K.B.'s boyfriend.When the police responded, they were informed about the alleged occurrences at the party the night before.Palmer was interviewed by police while being treated at a nearby hospital for injuries sustained in the fight.Although he admitted that he had sexual intercourse with K.B., he insisted that it was consensual.

On April 14, 1998, Palmer was charged with two counts of sexual assault of a child and two counts of statutory sexual seduction.On January 8, 1999, pursuant to plea negotiations with the State, Palmer pleaded guilty to one count of attempted sexual assault.The district court accepted the plea and subsequently sentenced Palmer to serve a prison term of 24 to 62 months.Additionally, pursuant to NRS 176.0931, the district court imposed a mandatory special sentence of lifetime supervision.Palmer appealed the judgment of conviction, arguing that the State breached the plea agreement.This court rejected Palmer's argument and dismissed the appeal.¹

On July 14, 2000, Palmer filed a proper person post-conviction petition for a writ of habeas corpus, contending that his counsel was ineffective and that his guilty plea was invalid.The State opposed the petition.The district court appointed counsel, and counsel filed a supplemental petition.Without conducting an evidentiary hearing, the district court denied the petition, finding Palmer's claims that his plea was not knowingly entered and that his counsel was ineffective were belied by the record.The instant appeal followed.

DISCUSSION

This court has previously held that, prior to pleading guilty, a defendant must be aware of the direct consequences arising from his criminal conviction.²Direct consequences have an automatic and immediate effect on the nature or length of a defendant's punishment; collateral consequences do not.³A defendant's awareness of a collateral consequence is not a prerequisite to a valid plea and, consequently, may not be the basis for vitiating it.⁴In this appeal, we are asked to determine whether lifetime supervision is a direct consequence of a guilty plea.We conclude that it is a direct consequence of a guilty plea because it enlarges or increases the punishment for the charged offense.⁵

Lifetime supervision is a mandatory special sentence imposed upon all offenders who have committed sexual offenses⁶ after September 30, 1995.⁷Like parolees and probationers, offenders subject to lifetime supervision are overseen by the Division of Parole and Probation and are required to conform their behavior to certain conditions, which are determined by the Board of Parole Commissioners after a hearing.⁸

Before the expiration of a term of imprisonment, parole or probation, the sex offender receives written notice of the particular conditions of his lifetime supervision, as well as an explanation of those conditions from a parole and probation officer.⁹Failure to abide by the conditions of lifetime supervision is a Category B felony punishable by a prison term of one to six years and a fine of up to $5,000.00.¹⁰

The legislative history of Nevada's lifetime supervision law indicates that it was intended to provide law enforcement personnel with a non-punitive tool to assist them in solving crimes.¹¹Statements of key legislative leaders indicate that the legislation was intended to create a "serious civil penalt[y]" to oversee "dangerous sexual predators, people with a high degree of likelihood of recidivism."¹²In fact, the lifetime supervision requirement was only one component of Senate Bill 192, which implemented comprehensive changes in Nevada's criminal justice system, including extensive sentencing revisions and sex offender notification provisions.The lifetime supervision provisions addressed the danger posed by repeat sexual offenders:

[A] person beginning as a juvenile sex offender will commit an average of 360 sex offenses in a lifetime; the problem is a sickness and that is why the system has not been successful in dealing with the offenders.

...

[I]f there is a sexual offense the police first look to the known sex offenders and most of the time the [perpetrator] is found within the group.By having lifetime supervision there would be a better track of the offenders; to keep better and more appropriate records.¹³

A post-release supervision program, like lifetime supervision, is not unique to Nevada.Other jurisdictions have enacted similar sentencing schemes, implementing a term of supervised release beginning only after the offender expires the prison term or parole or probationary period imposed for the criminal conviction.¹⁴Those jurisdictions have held, with few exceptions, that post-release supervision is a ramification of a guilty plea of which a defendant pleading guilty should be advised.Although the federal courts generally limit their discussion to Federal Rule of Criminal Procedure 11,¹⁵state courts considering the issue have held that post-release supervision is a direct consequence of a guilty plea.¹⁶In so concluding, the courts have generally reasoned that post-release supervision increases the maximum range of an offender's sentence, thereby directly and immediately affecting the defendant's punishment.¹⁷We agree with this conclusion.Despite some indications that the Nevada Legislature intended lifetime supervision to be a civil law enforcement tool, we conclude that, on balance, it is sufficiently punitive in nature and effect as to render it a direct penal consequence of a guilty plea, a consequence of which the defendant must be advised.¹⁸Lifetime supervision is a form of punishment because the affirmative disabilities and restraints it places on the sex offender have a direct and immediate effect on the range of punishment imposed.In certain instances, the conditions imposed may limit an offender's right to travel, live or work in a particular place.Additionally, those subject to lifetime supervision are often prohibited from engaging in a variety of activities, including: (1) having a blood alcohol level over.10; (2) associating with other ex-felons or registered sex offenders or with persons under 18 in a secluded environment; (3) accepting a new job without approval from the Division of Parole and Probation; (4) having a post office box; and (5) being in or near movie theaters, playgrounds, or businesses catering primarily to children.Finally, some offenders are required to attend counseling, abide by a curfew, take polygraph examinations, submit to medical tests for controlled substances, or allow searches of their persons or property.In essence, lifetime supervision involves actual monitoring of aspects of the offender's daily life to ensure that conditions deemed necessary to protect the community are satisfied.An offender is subject to the terms of lifetime supervision for a minimum of fifteen years.¹⁹

The State argues, however, that lifetime supervision is merely a form of parole and, consequently, our prior holding that parole is a collateral consequence of a guilty plea compels a conclusion that an advisement about lifetime supervision is not...