Scott v. State

• Decision Date: 07 July 1994
• Docket Number: No. 24014,24014
• Citation: 877 P.2d 503,110 Nev. 622
• Parties: Albert O'Neal SCOTT, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 503

877 P.2d 503

110 Nev. 622

Albert O'Neal SCOTT, Appellant, v. The STATE of Nevada, Respondent.

No. 24014.

Supreme Court of Nevada.

July 7, 1994.

McDonald & Ewing, Las Vegas, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City, Rex Bell, Dist. Atty., and James Tufteland, Chief Deputy Dist. Atty., Clark County, for respondent.

OPINION

PER CURIAM:

Appellant Albert O'Neal Scott, an ex-felon, was sitting in the rear seat of a vehicle which was pulled over upon suspicion of being stolen. The vehicle contained firearms, including a loaded 12-gauge shotgun on the floor of the rear seat, and Scott was carrying 12-gauge shotgun shells on his person. Scott was subsequently convicted of being an ex-felon in possession of a firearm and was sentenced as an habitual criminal to sixteen years in prison. Scott raises numerous assignments of error on appeal, one of which is meritorious.

We are persuaded that the State's post-conviction filing of a habitual criminal charge foreclosed assurance on review that Scott's pre-trial waiver of the right to counsel was knowing and intelligent. We therefore reverse and remand for a new trial in order to provide Scott the opportunity to secure counsel, now that he is aware that upon conviction, the State may seek to enhance his sentence by having him declared an habitual criminal. In the event Scott elects to again represent himself, he will be fully aware of the potential consequences of the failure of his own representation. We also conclude that appellant's Fourth Amendment arguments are without merit and that the evidence introduced against him below may again be utilized in his new trial.

FACTS

In the early morning hours of October 8, 1991, Las Vegas Metropolitan Police Department Officer Darrin Densley observed a white Buick Regal at the intersection of Jones and Smoke Ranch roads. Densley noticed that the vehicle's license plate was dangling and improperly secured to the vehicle. Officer Densley followed the vehicle while obtaining a DMV license check, which revealed that the license was registered to an Oldsmobile, rather than a Buick. Officer Densley then stopped the vehicle and ordered the occupants to exit. One of the occupants of the car, who was sitting in the rear right passenger's seat, was Scott.

As the occupants of the vehicle were exiting the car, Officer Finley arrived to assist Officer Densley. Several other officers were also present for what followed. Officer Finley testified that once the occupants of the vehicle were lined up, he proceeded to their vehicle "to make sure there were no other occupants and to check for weapons." Immediately upon opening the front passenger door, Officer Finley saw a loaded .38 caliber revolver on the floor between the passenger's seat and the door. The officer informed Officer Densley of the presence of the weapon, whereupon Officer Densley then proceeded to handcuff and pat down Scott and the other suspects, discovering three 12-gauge shot gun shells in Scott's right front pants pocket. Officer Finley then returned to the vehicle to determine for the safety of the officers whether there were any more weapons. On the floor area of the back seat, he discovered a fully loaded 12-gauge shotgun in a hefty plastic bag, "just like a garbage bag," along with eight more shotgun shells. A .22 semi-automatic pistol and additional .38 caliber ammunition were also retrieved.

It was ultimately discovered that the vehicle was not stolen, but Officer Densley justified the search of the vehicle by noting that at the time it was stopped, the officers had reason to believe that it was stolen, and that "[o]ftentimes when it is stolen and it's a felony vehicle offense then we check the vehicle out for the officer's safety to ascertain if there are any weapons in the vehicle." Officer Densley also testified that "if there is a possibility the vehicle is stolen or a possible felony vehicle, we are not going to approach the vehicle as a normal routine traffic stop. We treat it as if there may be possible felony suspects in the vehicle and we will have them exit the car."

The occupants of the car were initially arrested for possession of stolen property, as two of the guns found in the vehicle were determined to be stolen. However, Scott was ultimately charged and tried for the crime of possession of a firearm by an ex-felon, a felony in violation of NRS 202.360. Scott had formerly been convicted of the felonies of murder and attempted murder (in 1975) and selling the credit card of another Scott sought and obtained permission to represent himself, both at the preliminary hearing in justice court, and then again at his arraignment and trial in district court. Scott unsuccessfully moved to disqualify the district court judge. Scott's motion to suppress the firearms was also denied. The matter proceeded to trial on February 25, 1992, and the jury returned a verdict of guilty the next day. The State thereafter filed a motion to amend the information to charge Scott as an habitual criminal. Scott's opposition to the motion proved unsuccessful, and he was thereafter found to be an habitual criminal and sentenced to sixteen years in the Nevada State Prison.

(in 1987). The jury only heard evidence of the credit card conviction, after the district court determined that the 1975 felonies were too remote and too prejudicial to be admitted where the other, more recent felony conviction was available. The State was assertedly unaware of the credit card conviction before Scott moved to have it admitted in lieu of the earlier convictions.

DISCUSSION

Whether the State's success in enhancing Scott's sentence pursuant to a post-verdict motion charging Scott as an habitual criminal invalidated Scott's waiver of his Sixth Amendment right to assistance of counsel.

Scott protests the enhancement of his sentence resulting from the State amending the information and charging him as an habitual criminal after he had been found guilty of being an ex-felon in possession of a firearm. Scott notes that this move by the State substantially increased his potential penalty ¹ and contends that this rendered his pre-trial waiver of the right to assistance of counsel unintelligent, unknowing, and therefore invalid. We agree.

The United States Supreme Court has held that although a criminal defendant has a constitutional right to waive the right to counsel and represent himself, such a waiver must be knowing and intelligent. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In order to assure compliance with the Faretta standard, this court has required that the district court canvass a defendant who requests self-representation, and that such a canvass "must include an attempt to make the defendant aware of 'the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder ... and all other facts essential to a broad understanding of the whole matter.' " Anderson v. State, 98 Nev. 539, 540-41, 654 P.2d 1026, 1027 (1982) (quoting Cohen v. State, 97 Nev. 166, 168, 625 P.2d 1170, 1171 (1981)).

NRS 207.010(5) allows habitual criminal charges to be brought after conviction of the primary offense. Nevertheless, the State must advise the district court that such charges will be filed in the event of a conviction in order to enable the court to fully apprise a defendant of the potential consequences of self-representation. Otherwise, the court will be unable to inform the defendant of the range of punishment he may actually face and will also be ill-equipped to provide the defendant with a broad understanding of the whole matter.

This is what occurred in the instant case. At no point during the preliminary hearing or pre-trial canvasses of the defendant was he informed that he might be facing an additional charge with a greater penalty after being found guilty of the weapons charge. ² As the State itself concedes: "[A]t the time of the Faretta canvass, the judge was unaware that a habitual criminal allegation would be filed and could not have informed the Defendant of the possible subsequent enhancement." This rendered Scott's waiver of the right to counsel unknowing and unintelligent, and thus invalid under Faretta.

The State claims that it was not aware of both of Scott's prior felony convictions at the time that trial commenced. This lack of knowledge is difficult to understand or excuse since both judgments of conviction were entered in Clark County, Nevada. The district court also found the State's assertion suspect, noting that the sale of credit card conviction, of which the State was assertedly unaware, appeared "three or four different places [on the defendant's Scope Printout]" and that while an individual district attorney may not have learned about all of a defendant's prior convictions, the State at least had constructive notice thereof. In any event, the reason the court was not made aware of the possibility of habitual criminal enhancement prior to trial is irrelevant, as the effect is the same in any case.

The State also argues that Scott is a very sophisticated criminal who has represented himself before, and speculates that he would probably have represented himself even if he had been informed of the habitual criminal charges, and that he must surely have known of the full implications of going to trial, including the possibility of being sentenced as an habitual criminal. We are unwilling to substitute the State's speculation on what Scott may have done if he had been properly canvassed, for the type of actual canvass Scott was entitled to receive under this court's rulings on the subject. The post-conviction filing of habitual criminal charges rendered the pre-trial canvasses invalid as a basis for allowing self-representation.

For reasons previously discussed, Scott's conviction and sentence must be reversed and vacated, respectively, and the matter remanded...