Stocks v. Warden, Nev. State Prison

• Decision Date: 16 November 1970
• Docket Number: No. 6315,6315
• Citation: Stocks v. Warden, Nev. State Prison, 86 Nev. 758, 476 P.2d 469 (Nev. 1970)
• Parties: Byron T. STOCKS, Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent.
• Court: Nevada Supreme Court

Page 469

476 P.2d 469

86 Nev. 758

Byron T. STOCKS, Appellant, v.WARDEN, NEVADA STATE PRISON, Respondent.

No. 6315.

Supreme Court of Nevada.

Nov. 16, 1970.

Rehearing Denied Dec. 10, 1970.

Seymour H. Patt, Reno, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, William J. Raggio, Dist. Atty, and Kathleen M. Wall, Deputy Dist. Atty., Reno, for respondent.

OPINION

THOMPSON, Justice:

This is an appeal from an order of the district court denying, for the second time, post-conviction relief to Stocks who, on February 26, 1969, pleaded guilty to the sale of a narcotic drug and currently is serving a ten year sentence at the Nevada State Prison.The record of the arraignment shows that after the information was read to Stockes, the court inquired, 'What is your plea?' to which Stocks replied, 'Guilty, Your Honor.'The court accepted his plea without any further inquiry.Stocks was represented by counsel.

1.His first petition for relief from the conviction and sentence was on the ground that the record of his arraignment does not show that his plea was voluntarily and understandingly entered since the court failed to make the kind of inquiry constitutionally required by the United States Supreme Court decision of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274(1969).In Boykin, the court noted that several constitutional rights are involved in a waiver that takes place when a plea of guilty is entered: the privilege against compulsory self incrimination, the right to trial by jury, and the right to confront one's accusers.A waiver of these significant federal rights may not be presumed from a silent record.In Boykin, as here, the defendant was represented by counsel.There, as here, the court merely accepted the accused's guilty plea.Boykin's conviction was set aside by the High Court.

Boykin was decided June 2, 1969.The guilty plea with which we are here concerned was entered on February 26, 1969.The district court denied Stocks' first petition for relief, and this court dismissed his appeal therefrom.Although reasons were not given for either decision, we properly may assume that each rested upon the proposition that the doctrine of Boykin is not to receive retroactive application.Indeed, in June 1970we so ruled.Mathis v. Warden, 86 Nev. 439, 471 P.2d 233(1970).

2.Following the denial of Stock's first post-conviction petition and the dismissal of his appeal, he filed a second petition seeking to void his conviction because of the failure of the district court to meet statutory requirements in accepting his guilty plea.The relevant part of NRS 174.035(1) provides that the court shall not accept a guilty plea 'without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.'This challenge, based upon the mentioned statute, was not asserted in his first post-conviction petition.In Rogers v. Warden, Nevada State Prison, 86 Nev. 359, 468 P.2d 993(1970), we ruled that the failure of the petitioner to explain why he did not assert the grounds of his second petition for relief in his first petition, barred his second application.That decision rested upon NRS 177.375 and the desire to finalize litigation.Although the petitioner did not offer such an explanation in his second application for relief, that explanation may be inferred from the record before us.His first petition was presented without the assistance of counsel, which might well explain his failure to call relevant statutory requirements to the attention of the court.When counsel was secured and the second petition submitted, this inadequacy was corrected.We could deny review upon the rule of Rogers, supra.In this instance, however, we choose to entertain the matter and resolve some recurring problems incident to the acceptance of guilty pleas.

The unrebutted affidavit submitted by Stocks in support of his petition for relief suggests that he was induced to plead guilty by his counsel's advice that he might be charged as an habitual criminal if he did not so plead.Moreover, he seems to contend that the district court was required under NRS 174.035(1) to advise him that parole was not available to one charged and sentenced for habitual criminality.NRS 213.110(1);Eisentrager v. State Board of Parole, 85 Nev. 672, 462 P.2d 40(1969).He argues that such advice from the court falls within the statute as a 'consequence of the plea' of guilty to the charge of sale of a narcotic drug.

Each contention is unsound.Advice from his counsel that he might be charged as an habitual criminal does not, of itself, destroy the voluntary nature of his guilty plea to the crime with which he was charged.A guilty plea is not compelled and invalid under the Fifth Amendment when motivated by the defendant's desire to accept certainty or probability of a lesser penalty rather than to face the possibility of a higher penalty.Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747(1970).The voluntariness of his plea is to be determined by considering all relevant circumstances surrounding it.There is nothing in the record to suggest that his will was overborne, or that he was unable to weight alternatives.He was represented by competent counsel.The possibility of being charged as an habitual criminal should not weigh heavily if he were not guilty of the primary offense, since proof of guilt of the primary charge is a precondition to a subsequent habitual hearing.

The statutory direction that the judge determine the defendant's understanding of the consequences of his plea does not embrace the possible habitual criminal charge and the consequences flowing therefrom.Stocks was not charged as as habitual criminal.His guilty plea was to the sale of a narcotic drug.Parole is now unavailable to him because of prior convictions and not as a consequence of his guilty plea to the charge made.Anushevitz v. Warden, Nevada State Prison, 86 Nev. 191, 467 P.2d 115(1970).

Our statute, NRS 175.035(1), is patterned after Rule 11 of the Federal Rules of Criminal Procedure.The Federal rule has received the attention of the United States Supreme Court.Its purpose is to insure that every defendant who pleads guilty receives the procedural safeguards of the rule which are designed to facilitate the determination of voluntariness, and to provide a complete record at the time the plea is entered of factors relevant to that determination.McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418(1969);Halliday v. United States394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16(1969).When the inquiry contemplated by the Boykin (1969);Halliday v. United States, 394 U.S.statute is made it 'forestalls the spin-off of collateral proceedings that seek to probe murky memories.'Boykin v. Alabama, id. at 244, 89 S.Ct. at 1713.

McCarthy and Halliday do not rest upon constitutional grounds.In each instance, the High Court especially noted this fact.The concern of the Court was with Federal Rule 11 as applied to Federal criminal cases.Neither case...