State v. Freese

• Decision Date: 04 December 2000
• Docket Number: No. 33274.,33274.
• Citation: 13 P.3d 442,116 Nev. 1097
• Parties: The STATE of Nevada, Appellant, v. Bryan Scott FREESE, Respondent.
• Court: Nevada Supreme Court

13 P.3d 442

116 Nev. 1097

The STATE of Nevada, Appellant, v. Bryan Scott FREESE, Respondent.

No. 33274.

Supreme Court of Nevada.

December 4, 2000.

Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Appellant.

Carmine J. Colucci, Las Vegas, for Respondent.

BEFORE THE COURT EN BANC.

OPINION ON RECONSIDERATION¹

BECKER, J.:

In 1996, respondent Bryan Scott Freese was charged with nine criminal counts arising from sexual conduct with a minor. Pursuant to negotiations, Freese entered into a written plea agreement wherein he agreed to plead guilty to one count of sexual assault upon a minor under sixteen years of age. Freese entered his guilty plea on May 20, 1997. Freese filed a post-conviction petition for a writ of habeas corpus in 1998 alleging ineffective assistance of counsel and challenging the sufficiency of the plea canvass.

The district court found, based upon the totality of the circumstances, that Freese's plea was freely, voluntarily and knowingly entered and that he understood the nature of the offense and the consequences of his plea. Despite this finding, the district court² granted the petition, on the grounds that the plea canvass did not advise Freese about the elements of the offense or the rights Freese would waive by pleading guilty and the guilty plea memorandum could not be considered in determining the validity of the plea.³ We disagree, and for the reasons set forth below, we reverse the district court's order granting the post-conviction petition for a writ of habeas corpus.⁴

FACTS

In July of 1996, Ethan Williams (Williams) was a neighbor of Freese. Williams' two-story home enabled him to view areas of the Freese residence. While in the bathroom of his residence, Williams observed Freese engaging in sexual activities, including what appeared to be sexual intercourse, with a minor female child who was later determined to be five years old. Williams then contacted the police and reported what he had observed.

After responding to Williams' report and talking to the child, the police took her to Sunrise Hospital where a physical examination was conducted by a pediatrician. The examination revealed evidence of semen around the child's genital area. Freese was informed of his Miranda⁵ rights, waived them, and gave a voluntary statement to the police. Freese admitted to masturbating in the child's presence and ejaculating on her.

Freese was originally charged by criminal complaint. Pursuant to negotiations, he waived his preliminary hearing and was bound over to district court for entry of a plea of guilty. Freese determined he did not wish to proceed with the negotiations and a trial date was set. Subsequently, the district attorney's office received information that caused it to present additional matters to the Clark County Grand Jury. On October 17, 1996, the grand jury returned a True Bill against Freese containing four counts of lewdness with a child under the age of fourteen years and five counts of sexual assault upon a minor under sixteen years of age. Freese was arraigned on the indictment and the previously filed information was dismissed.

A trial date was set; however, the matter was again negotiated and on May 20, 1997, Freese entered into a written plea agreement wherein he agreed to plead guilty to one count of sexual assault with a minor under sixteen years of age. In return for Freese's plea of guilty, the district attorney's office agreed not to proceed on the remaining counts. Freese then entered his guilty plea pursuant to the negotiations.

Prior to accepting the guilty plea, the district court, in addition to reviewing the guilty plea memorandum, conducted the following canvass of Freese:

THE COURT: Is your plea of guilty freely and voluntarily made?

FREESE: Yes, it is.

THE COURT: Is Mr. Wolfson your attorney?

FREESE: Yes, he is.

THE COURT: Have you discussed this matter with him?

FREESE: Yes, I have.

THE COURT: Has he explained the nature of the offense here charged against you?

FREESE: Yes.

THE COURT: Did he tell you what the elements of that offense are which the state would have to prove at the time of trial?

FREESE: Yes, he has.

THE COURT: Do you feel you understand those matters?

FREESE: Yes.

THE COURT: Did he tell you what sentence the court could impose by virtue of your guilty plea?

FREESE: Yes, he has.

THE COURT: What is your understanding of what the maximum sentence is?

FREESE: Life with parole up to 20 or a sentence of five to 20 years.

THE COURT: Exactly. Do you understand that the matter of sentencing is strictly up to the court and no one else can promise you anything?

FREESE: Yes, I do.

* * *

THE COURT: Do you understand that this is a non-probationable offense, that you must serve some prison time?

FREESE: Yes, I do.

THE COURT: Have you read the guilty plea agreement on file?

FREESE: Yes, I have.

THE COURT: Do you understand everything that's in it?

FREESE: Yes, I have.

THE COURT: Is it all true to the best of your knowledge?

FREESE: Yes.

THE COURT: Did you sign the agreement, Mr. Freese?

FREESE: Yes, I have.

THE COURT: When you read it and signed it, was Mr. Wolfson, your attorney, available to you to answer any questions that you might have?

FREESE: Yes.

THE COURT: When you read and signed the agreement, Mr. Freese, were you under the influence of alcohol, drugs, medicine, or illness, anything like that?

FREESE: No, Sir.

THE COURT: In this guilty plea agreement you make a plea negotiation with the state and as part of that plea negotiation you plead guilty to this offense of sexual assault with a minor under 16 years of age.

Do you think it's in your best interest to do that?

FREESE: Yes, I do.

THE COURT: Does this plea agreement state the entire negotiation you have made with the state?

MR. WOLFSON: May I interject? I think inferentially it does, but to be totally specific, there are more counts in the original indictment.

This amended indictment supersedes the original indictment, so by pleading guilty to the one count inferentially, the state will not be proceeding on the other counts.

It doesn't say that here, but by inference that's what we understand the plea bargain to be.

* * *

THE COURT: Is that your understanding, Mr. Freese?

FREESE: Yes, Sir.

THE COURT: Court accepts defendant's plea of guilty under the guilty plea agreement.

The written plea memorandum that Freese acknowledged reading, understanding and signing in the oral canvass contained a detailed statement of the negotiations, the elements of the offense, possible sentences Freese could receive and the rights Freese would waive by pleading guilty. With respect to the elements of the crime, the plea agreement stated that:

I understand that by pleading guilty I admit the facts which support all the elements of the offense(s) to which I now plead as set forth in Exhibit "1".⁶

The plea memorandum also contained the following waiver of rights language:

By entering my plea of guilty, I understand that I am waiving and forever giving up the following rights and privileges:

1. The constitutional privilege against self-incrimination, including the right to refuse to testify at trial, in which event the prosecution would not be allowed to comment to the jury about my refusal to testify.

2. The constitutional right to a speedy and public trial by an impartial jury, free of excessive pretrial publicity prejudicial to the defense, at which trial I would be entitled to the assistance of an attorney, either appointed or retained. At trial the State would bear the burden of proving beyond a reasonable doubt each element of the offense charged.

3. The constitutional right to confront and cross-examine any witnesses who would testify against me.

4. The constitutional right to subpoena witnesses to testify on my behalf.

5. The constitutional right to testify in my own defense.

6. The right to appeal the conviction, with the assistance of an attorney, either appointed or retained, unless the appeal is based upon reasonable constitutional jurisdictional or other grounds that challenge the legality of the proceedings and except as otherwise provided in subsection 3 of NRS 174.035.

Based upon the written plea memorandum and Freese's responses to the oral canvass, the district court determined that Freese understood the nature of the offense and the consequences of his plea and that his plea was freely, voluntarily and knowingly made. The district court then accepted the guilty plea.

On September 3, 1998, Freese filed a timely post-conviction petition for a writ of habeas corpus alleging ineffective assistance of counsel and challenging the sufficiency of the plea canvass. On October 14, 1998, the district court granted the petition solely on the ground that the plea canvass conducted by the district court judge was inadequate. Specifically, the district court found that the judge failed to ask Freese if he understood what rights he was waiving as a result of a guilty plea and to review the elements of the crime with Freese. The district court made its findings under the belief that the guilty plea agreement could not be considered in determining the validity of Freese's plea. The district court stated that:

It's this Court's independent feeling that there shouldn't be a dispute that Mr. Freese did not understand the nature and consequence of his plea or he did not understand the elements of that plea and the elements of the charges based upon reviewing of this and the Guilty Plea Agreement that has been memorialized with the necessary items. However, when the Court sees the Koerschner case, K-O-E-R-S-C-H-N-E-R vs. State at 111 Nev. 384, 892 P.2d 942, our Supreme Court has indicated the existence of a written plea agreement did not remedy the District Court's failure to personally canvass appellant, and as I review this document, there has been no showing that Mr. Freese is not

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