State v. Gomes, No. 27163
| Docket Nº | No. 27163 |
| Citation | 112 Nev. 1473, 930 P.2d 701 |
| Case Date | December 20, 1996 |
| Court | Supreme Court of Nevada |
Page 701
v.
Donald Fred GOMES, Respondent.
Page 703
[112 Nev. 1474] Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney and James Tufteland, Chief Deputy District Attorney, Clark County, for Appellant.
Steven J. Karen, Las Vegas, for Respondent.
[112 Nev. 1475] OPINION
PER CURIAM:
The district court granted post-conviction habeas relief to respondent Donald Fred Gomes and set aside his guilty plea and judgment of conviction. The court found that Gomes had intended to enter a plea of nolo contendere but that a plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), was entered instead. The court concluded that the plea was therefore not voluntary and knowing and should be set aside.
We hold that a plea entered pursuant to Alford is a plea of nolo contendere and reverse.
On January 20, 1993, Gomes signed a plea bargain agreement in which he pleaded guilty to one count of sexual assault. The agreement stated that Gomes denied his guilt but entered his plea pursuant to Alford and agreed that the State could establish at trial that he had forced the daughter of the woman he lived with 1 to [112 Nev. 1476] engage in multiple sexual acts with him since she was twelve. The agreement repeatedly referred to the plea as a guilty plea.
The written agreement was filed in open court during a hearing the same day, January 20, 1993. The district court asked Gomes, "Do you understand the charge against you?" He answered, "Yes." The court asked, "What is your plea to that charge?" He answered, "Nolo contendere." Defense counsel, Henry R. Gordon, told the court that "we are agreeable to the terms of the Plea Bargain Agreement; however, I want to make sure one thing is clear on the record: He is pleading nolo contendere with the ramifications for civil purposes because they're civil implications involved in this case."
The prosecutor then said, "Your Honor, the correct language is he is entering a no contest plea. The Court may treat that and accept that as a guilty plea pursuant to the Alford decision." Defense counsel said again that Gomes' plea was nolo contendere even though the written agreement described the plea as guilty. He said that "there might be some inconsistencies" with the plea agreement. The prosecutor responded: "There is no inconsistency. The Court and the law provides that this is treated as a guilty plea."
The district court asked for the factual basis for the plea, and the prosecutor said that Gomes' "stepdaughter" would testify that Gomes had forced her to have sex with him since she was twelve. The court asked Gomes if he knew the possible penalty he faced, and Gomes said, "five to life." Gomes answered yes when asked if he had discussed the agreement with his attorney. When the court asked Gomes if he had read it, Gomes' counsel spoke: "In fact, Your Honor, may I make the record that he's discussed it not only with me on at least three prior occasions
Page 704
but with two additional attorneys." (Gomes was not in custody while his lawyer negotiated the plea agreement with prosecutors.) When asked if he had questions of the court regarding the agreement, Gomes said no. The court then told Gomes that he was waiving certain constitutional rights by entering his plea: the right to a trial where the State would have to prove his guilt beyond a reasonable doubt, the right to confront witnesses against him, the right to subpoena his own witnesses, the right to either testify or not, the right to an attorney, and the right to appeal. Gomes said he understood.Defense counsel told the district court that Gomes was entering a plea of nolo contendere to avoid facing multiple counts and possible greater punishment. The court then said, "I'm going to accept your plea of nolo contendere."
A sentencing hearing occurred on March 24, 1993. Defense counsel moved for a continuance because Gomes had just been [112 Nev. 1477] served by the victim's mother with a complaint for civil claims based on the sexual assaults and needed time to get a lawyer to represent him. The sentencing had been continued twice before, and the district court denied the motion. The court then said,
January 20th, 1993, this court accepted your guilty plea pursuant to North Carolina versus Alford to the crime sexual assault.
Mr. Gordon: That was a nolo contendere, for the record. I wanted to clear that up when I get my turn to be heard. We were very, very sure we wanted to enter that, because of what we suspected she would do, she did. It was a nolo contendere. It wasn't an Alford.
The Law Clerk: The court file reveals a nolo plea.
....
The Court: That is correct. The court accepted a nolo contendere plea.
The district court sentenced Gomes to life in prison. A judgment of conviction, prepared by the District Attorney's office, was entered on May 7, 1993. It stated that the district court adjudged Gomes guilty of sexual assault "by reason of his plea of guilty" and sentenced him to life in prison with the possibility of parole.
Judgment was entered against Gomes in the civil suit on June 14, 1993. The written judgment stated that an entry of default was filed in the case because Gomes failed to answer the complaint; nevertheless, a trial was held on June 8, 1993. Gomes did not attend despite receiving notice. The court awarded a total judgment of $1,026,800.
On May 3, 1994, Gomes filed a petition for a writ of habeas corpus, alleging among other things that his counsel had been ineffective and that he had not been aware of the consequences of his plea. The district court held an evidentiary hearing on March 24, 1995. The only witness to testify was Gomes' former attorney, Gordon, who was called by the State. Gordon said that Gomes did not really care about defending against the civil claims, even though Gordon urged him to avoid a default, because Gomes had already "got rid" of his assets.
At a hearing on May 5, 1995, the district court stated that
it was clear in the transcript that Mr. Gomes was going to plead nolo contendere to the charge of sexual assault, and that during the--this was changed right in mid stream; an Alford plea, pursuant to Alford versus North Carolina, was entered, not a nolo contendere plea.
There is a difference between those two pleas, and I don't believe--it appears from the record that the defendant was [112 Nev. 1478] advised and both attorneys agreed that these two types of pleas were distinctly the same, when, in fact, they are not.
Therefore, the Court is going to set aside...
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Burnside v. State, 56548.
...juvenile records to the State. To the extent that the defense disclosed the records, Burnside cannot now complain. See State v. Gomes, 112 Nev. 1473, 1480, 930 P.2d 701, 706 (1996) (providing that error in admitting evidence was not reversible where defense invited error); Ybarra v. State, ......
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Clark v. Neven, Case No. 2:11-cv-00585-KJD-PAL
...of a victim is sufficient to uphold a conviction for sexual assault. Gaxiola v. State [State v. Gomes ], 121 [112] Nev. 1473, 1481, 930 P.2d 701, 706 (1996) ; Washington v. State, 112 Nev. 1067, 1073, 922 P.2d 547, 551 (1996). The victim testified that Clark pushed her down on the bed and h......
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Gaxiola v. State, 42258.
...18. U.S. v. Weintraub, 273 F.3d 139, 152 (2d Cir.2001) (quoting U.S. v. Feliciano, 223 F.3d 102, 115 (2d Cir.2000)). 19. State v. Gomes, 112 Nev. 1473, 1481, 930 P.2d 701, 706 (1996); Washington v. State, 112 Nev. 1067, 1073, 922 P.2d 547, 551 (1996); Hutchins v. State, 110 Nev. 103, 109, 8......
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Righetti v. Eighth Judicial Dist. Court of State, 70591
...and intelligently; it does not operate to limit the charges or theories to which a defendant is admitting his guilt. State v. Gomes , 112 Nev. 1473, 1480–81, 930 P.2d 701, 706 (1996) (explaining that although it is "preferable" for the district court to elicit from a defendant an admission ......
-
Burnside v. State, 56548.
...juvenile records to the State. To the extent that the defense disclosed the records, Burnside cannot now complain. See State v. Gomes, 112 Nev. 1473, 1480, 930 P.2d 701, 706 (1996) (providing that error in admitting evidence was not reversible where defense invited error); Ybarra v. State, ......
-
Clark v. Neven, Case No. 2:11-cv-00585-KJD-PAL
...of a victim is sufficient to uphold a conviction for sexual assault. Gaxiola v. State [State v. Gomes ], 121 [112] Nev. 1473, 1481, 930 P.2d 701, 706 (1996) ; Washington v. State, 112 Nev. 1067, 1073, 922 P.2d 547, 551 (1996). The victim testified that Clark pushed her down on the bed and h......
-
Gaxiola v. State, 42258.
...18. U.S. v. Weintraub, 273 F.3d 139, 152 (2d Cir.2001) (quoting U.S. v. Feliciano, 223 F.3d 102, 115 (2d Cir.2000)). 19. State v. Gomes, 112 Nev. 1473, 1481, 930 P.2d 701, 706 (1996); Washington v. State, 112 Nev. 1067, 1073, 922 P.2d 547, 551 (1996); Hutchins v. State, 110 Nev. 103, 109, 8......
-
Righetti v. Eighth Judicial Dist. Court of State, 70591
...and intelligently; it does not operate to limit the charges or theories to which a defendant is admitting his guilt. State v. Gomes , 112 Nev. 1473, 1480–81, 930 P.2d 701, 706 (1996) (explaining that although it is "preferable" for the district court to elicit from a defendant an admission ......