Statz v. State

• Decision Date: 28 August 1997
• Docket Number: No. 25597,25597
• Citation: 944 P.2d 813,113 Nev. 987
• Parties: David Alan STATZ, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 813

944 P.2d 813

113 Nev. 987

David Alan STATZ, Appellant, v. The STATE of Nevada, Respondent.

No. 25597.

Supreme Court of Nevada.

Aug. 28, 1997.

Michael R. Specchio, Public Defender, John Reese Petty, Deputy Public Defender, Washoe County, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent.

OPINION

YOUNG, Justice:

Appellant David Alan Statz pleaded guilty to murder and larceny from the person not amounting to robbery pursuant to a plea bargain in which the state "stipulated" to a sentence of life imprisonment with the possibility of parole for the murder and a concurrent sentence for the larceny. At Statz's sentencing the prosecutor called the victim's father as a witness and commented on Statz and the nature of the crime. Because the state did not explicitly reserve the right to present facts or argument at the sentencing, we conclude that the prosecutor's actions violated the plea agreement. We therefore vacate Statz's sentences and remand for resentencing.

FACTS

The state charged Statz by amended information with one count of murder and one count of larceny from the person not amounting to robbery. On February 24, 1994, Statz signed a plea memorandum and pleaded guilty, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to both charges before the district court, Judge Jerry Carr Whitehead presiding. The plea memorandum provided: "The State will stipulate to life with the possibility of parole on Count I, and stipulate that Count II will run concurrently with Count I."

During the plea canvass, defense counsel told the district court that Statz was pleading guilty because the state possessed sufficient evidence to convict him and he wanted to avoid the possibility of greater punishment. The court had defense counsel advise Statz on the record of the rights he was waiving by pleading guilty. Defense counsel further stated that the plea bargain was that Statz would receive a sentence of life with the possibility of parole on the murder charge and, regarding the larceny charge, the state could argue for a ten-year prison term, the defense could argue for less, and the sentence would be concurrent. The court--and the plea memorandum--informed Statz that the court was not bound to follow the parties' agreement on sentencing.

The district court had the prosecutor inform Statz of the elements of each offense which the state would have to prove at trial. The prosecution then summarized the competent evidence it was prepared to present. The bartender at a local bar could testify that Statz entered the bar on the evening of May 23, 1993; struck up a conversation with the victim, Robert Simons, while speaking in an Australian accent; and left the bar with Simons. A cabdriver could testify that he dropped Statz and Simons at Simons's apartment that night. The roommate of Simons could testify that late that night or early the next morning he came home and found Simons dead. An autopsy showed that Simons was killed by a screwdriver wound to the chest and had suffered numerous bruises to his face, neck, and shoulders. A police detective could testify that Statz admitted in an interview that he had struck Simons and stabbed him with a screwdriver and then left the apartment with a telephone and Simons's watch. Following this summary of the evidence, the court accepted Statz's plea.

The district court, Judge James A. Stone presiding, sentenced Statz on April 6, 1994. Defense counsel objected to an allegation in the presentence report by the victim's father that his son said 27 days before he was killed that he feared for his life. Counsel said that this was irrelevant because Statz and Simons first met on the day of Simons's death. The prosecutor countered that this was no basis for a factual correction to the report and said that he would call the father to testify under oath. Robert Simons testified that 24 or 27 days prior to his son's death, his son told him that he feared that a big guy with an Australian accent was going to kill him. Mr. Simons also told the court that Statz should never get out of prison and that if he got out, he would do it again.

Following this testimony, the prosecutor alluded to a written statement by Statz to the court in which Statz apparently claimed that Simons attempted to stab him, the two struggled and he then stabbed Simons. The prosecutor said that the evidence at the scene did not support this claim. He said that there were "two people that knew what went on in that room; one person is able to tell you this morning what happened, and another person isn't." The prosecutor described the severity of Simons's wounds and said that Statz took the telephone so that Simons could not "call for help and assistance as he lay gurgling in the last minutes of his life."

Statz testified and denied knowing Simons before the night of the killing. He said that Simons attacked him with the screwdriver and that he did not intend to kill Simons. The prosecutor cross-examined Statz mainly in regard to the inconsistent statements he made to police investigators.

In his argument, defense counsel reminded the district court that the plea agreement called for a sentence of life with the chance of parole for the murder and a concurrent sentence for the larceny. The prosecutor then told the court that

the plea agreement and the plea memorandum filed in this case certainly indicate the state's position in this case and the realities that it faced.

My point in both my cross-examination of Mr. Statz and the statements that I have made to the court were specifically designed to address apparently the comments and the position of the defendant before this court that this was a matter of self-defense.

An officer of the Division of Parole and Probation told the court that the Division recommended a sentence of life without the chance of parole for the murder because, based on Statz's own statement, it appeared that Statz could have left the apartment before violence occurred, that Statz continued to beat Simons even after stabbing him, that Simons was still alive when Statz left with Simons's phone, and that Statz was not forthcoming in speaking with detectives. The Division recommended a concurrent sentence for the larceny because it was "part and parcel" of the murder.

The district court sentenced Statz to a term of life in prison with the possibility of parole for the murder and a consecutive prison term of ten years for the larceny and ordered him to pay $1,000 in restitution.

DISCUSSION

Statz contends that in calling the victim's father to testify, in cross-examining Statz, and in commenting on the circumstances of the crime, the state violated its agreement to stipulate to a sentence of life with the possibility of parole for murder and a concurrent prison term for larceny. The state asserts that the prosecutor simply informed the district court of the nature of the offenses to show that the larceny warranted a lengthy concurrent sentence. ¹

The United States Supreme Court has held that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971). This court has held that when the state enters a plea agreement, it is held to the most meticulous standards of both promise and performance. Citti v. State, 107 Nev. 89, 91, 807 P.2d 724, 726 (1991). Violation of either the terms or the spirit of the agreement requires reversal. Id.

In Kluttz v. Warden, Nevada State Prison, 99 Nev. 681, 682, 669 P.2d 244, 244 (1983), the prosecutor agreed to seek a sentence of no more than two years in exchange for the defendant's guilty plea. However, at the sentencing hearing the prosecutor stated that his office was unaware of the defendant's prior record when the plea agreement was struck, and he provided details of that record. Id. at 682-83, 669 P.2d at 244-45. This court concluded that the prosecutor here did not expressly violate the plea bargain. Nevertheless, in advising the sentencing judge that the state had entered into the plea bargain without knowledge of all of the salient facts, the prosecutor implicitly was seeking a sentence in excess of two years. The vice in the state's conduct was not that it mentioned Kluttz's prior criminal record, but its insinuation that the plea bargain should not be honored.

Id. at 684, 669 P.2d at 245 (citation omitted). Therefore, the court concluded that the comments violated the spirit of the plea agreement and ordered a resentencing. Id. at 684, 669 P.2d 244, 669 P.2d at 246.

This court also ordered resentencing in Wolf v. State, 106 Nev. 426, 794 P.2d 721 (1990), where the prosecutor acknowledged that he could not argue for a sentence of more than five years, but after detailing the defendant's criminal history implicitly argued for the presentence report's recommendation of nine years, and in Doane v. State, 98 Nev. 75, 639 P.2d 1175 (1982), where the prosecution violated an agreement to stand silent at sentencing when it asked the court if the sentences for multiple counts were consecutive.

Federal courts construe plea agreements according to what a defendant reasonably understood when the defendant entered the plea. United States v. Jimenez, 928 F.2d 356, 363 (10th Cir.), cert. denied, 502 U.S. 854, 112 S.Ct. 164, 116 L.Ed.2d 129 (1991); United States v. Shorteeth, 887 F.2d 253, 256 (10th Cir.1989). If the government agrees only to refrain from recommending a specific sentence and intends to retain the right to present facts and argument pertaining to sentencing, such a limited commitment should be made explicit. United States v. Casamento, 887 F.2d 1141, 1181 (2d...