MICHAEL PAUL STURROCK, Appellant, v. THE STATE OF NEVADA, Respondent
Sturrock v. State
Thompson, J., concurs.
MICHAEL PAUL STURROCK, Appellant, v. THE STATE OF NEVADA, Respondent.
MICHAEL PAUL STURROCK, Appellant, v. THE STATE OF NEVADA, Respondent.
Nos. 10926, 10927
December 20, 1979
604 P.2d 341
Mike Harrison, Las Vegas, for Appellant.
Richard H. Bryan, Attorney General, Carson City; and Robert J. Miller, District Attorney, Clark County, for Respondent.
OPINION
By the Court,
Manoukian, J.:
These are consolidated appeals from felony convictions by jury of two separate counts of possession of stolen property. NRS 205.275. We recognize three issues as meriting discussion. They are: (1) Whether the district court abused its discretion by refusing to accept appellant's guilty plea; (2) Whether appellant was denied effective assistance of counsel by counsel's failure to request a preliminary hearing; and (3) Whether the district court erred by not sua sponte remanding the cases to justice's court for preliminary examinations.
Pursuant to plea negotiations appellant was to waive his right to a preliminary examination, see NRS 171.186, and was subsequently, in district court, to enter a plea of guilty to one charge of possession of stolen property. In return, the district attorney had agreed to dismiss other charges against appellant and to recommend a sentence concurrent with that already being served by appellant on another conviction. Clark County Deputy Public Defender, William Henry, had initially discussed the plea bargain with appellant. Pursuant to this agreement, appellant, represented by Deputy Public Defender Thomas Gardner, appeared in justice's court, waived his preliminary examination and had the plea bargain read into the record. The case then proceeded by information in the district court.
Appellant was represented by Henry during his initial district court appearance. Then, Henry informed the court that Sturrock was reluctant to fulfill the plea bargain. As a result, Henry requested a continuance until Gardner could confer with appellant. Several days later, appellant appeared in district court with both Henry and Gardner, during which time appellant stated that he had entered into the plea negotiation agreement and had waived his preliminary examination as a result of misrepresentations made to him by Henry. Henry adamantly denied that he had made any misrepresentation and moved for leave to allow the Public Defender's Office to withdraw from the case. The court denied the motion to withdraw and read the informations. Thereafter, appellant entered pleas of not guilty to both charges. Gardner again moved for and was denied leave to withdraw as counsel. Appellant, addressing the court, asked if he could have a preliminary examination. The court failed to answer appellant's question and the proceedings were concluded.
Thereafter, a hearing was held to afford appellant the opportunity to change his pleas. The district court initially permitted appellant to withdraw his pleas of not guilty and enter a plea of guilty to one of the charges. During the course of the district court's inquiry as to the validity of the guilty plea, however, appellant stated that he had entered the plea of guilty only on the advice of counsel, and that he (appellant) felt that he would prevail at a trial. As a result of appellant's statements, the district court found the guilty plea was not voluntarily tendered and, accordingly, declined to accept it. The cases were then set for trial.
1. The Guilty Plea.
The question of accepting a tendered plea of guilty is within the sound discretion of the trial court. See Santobello v. New York, 404 U.S. 257 (1971); North Carolina v. Alford, 400 U.S. 25 (1970); Lynch v. Overholser, 369 U.S. 705 (1962). Although the tendered plea may be constitutionally valid, the court is under no compulsion to accept it. North Carolina v. Alford, 400 U.S. at 38 n.11. In determining whether the guilty plea should be rejected, however, the trial court is obligated to consider seriously the proffered plea. See United States v. Bednarski, 445 F.2d 364 (1st Cir. 1971). In the instant case, the district court had an adequate factual basis upon which to conclude that the tendered plea was either involuntary or proffered in such a manner as to be inconsistent with the effective administration of justice. In particular, the district court could infer that the plea was not voluntary from the appellant's prior reluctance to enter the plea of guilty, his apparent mistrust of counsel (although the record reflects that this was merely appellant's subjective belief), and his assertion that he felt he could prevail at trial. United States v. Bettelyoun, 503 F.2d 1333, 1336 (8th Cir. 1974); cf. Rouse v. State, 91 Nev. 677, 679, 541 P.2d 643, 644 (1975) (where state fulfills its obligations under plea bargain, defendant's subjective expectation of leniency is insufficient to entitle him to withdraw guilty plea). It is even arguable that a sufficient basis existed for which the court could have permitted appellant to withdraw his guilty plea, prior to sentencing, had the plea been accepted. State v. District Court, 85 Nev. 381, 384, 455 P.2d 923, 925-26 (1969) (granting of motion to withdraw one's plea before sentencing is proper where substantial reason causes the granting of the motion to appear fair and just); NRS 176.165. This contention is without merit.
2. Effective Counsel.
Appellant next contends that he was denied the effective assistance of counsel by virtue of his failure to request a preliminary examination after the frustration of the plea negotiations. It is settled in this state that a defendant is denied the effective assistance of counsel where counsel's conduct has reduced the proceedings to a sham, a farce, or a pretense. Shuman v. State, 94 Nev. 265, 272, 578 P.2d 1183, 1187 (1978). There is a strong presumption that counsel has fully discharged his duties. Warden v. Lischko, 90 Nev. 221, 223, 523 P.2d 6, 7 (1974). In the instant case, it was apparent prior to, and immediately after appellant entered his pleas of not guilty, that appellant wished to have a preliminary examination. Even though we do not approve of counsel's failure to insure that appellant was afforded the benefit of this important procedural device, nevertheless, counsel was present at each appearance of the accused, was well prepared at trial, attempted to have the plea bargain reinstated, filed a motion to dismiss the charges, and conducted vigorous cross-examination of witnesses at trial. Under these circumstances, we cannot say that counsel's isolated failure to act reduced the proceedings below to a sham, a farce or a pretense. We find no merit to this contention.
3. The Requested Preliminary Examination.
Appellant further contends that it was error for the district court to accept his tendered not guilty pleas after the breakdown in negotiations when it was apparent that appellant desired to exercise his right under NRS 171.196 to a preliminary examination. Prior to his appearance in district court, appellant had waived his right to a preliminary examination as part of a plea bargain agreement. But, when such an agreement is not consummated, the validity of the waiver is vitiated, and it is incumbent upon the district court to absolve appellant of the adverse consequences of the aborted plea bargain. See Schoultz v. Hocker, 469 F.2d 681 (9th Cir. 1972); Fine v. Warden, 90 Nev. 166, 521 P.2d 374 (1974); Riley v. Warden, 89 Nev. 510, 515 P.2d 1269 (1973). The court was thus obligated to inform appellant of his right to a preliminary examination before permitting him to enter a plea.
The effect of the district court's error was that appellant forfeited his opportunity to exercise the statutory right to a preliminary examination. Although a preliminary examination is not constitutionally mandated, see Azbill v. Fisher, 84 Nev. 414, 442 P.2d 916 (1968), it does provide important benefits to the defense of an accused. See Coleman v. Alabama, 339 U.S. 1 (1970); cf. Seim v. State, 95 Nev. 89, 590 P.2d 1152 (1979) (post-indictment preliminary examination not constitutionally mandated).
Nevertheless, to say that the district court erred in refusing to remand for a preliminary examination does not mandate reversal following trial and conviction. Because appellant had a clear right to a preliminary examination, and the district court exercised no discretion in failing or refusing to remand to the justice court, NRS 171.208, mandamus was available to compel remand. NRS 34.160. By failing to pursue this remedy, and instead proceeding to trial, appellant has waived any impropriety regarding the trial court's inaction.
In analogous situations, we have held that failure to bring an issue before this court in a timely manner results in a waiver of the objection. See Nix v. State, 91 Nev. 613, 541 P.2d 1 (1975); George v. State, 89 Nev. 47, 505 P.2d 1217 (1973); Skinner v. State, 83 Nev. 380, 432 P.2d 675 (1967); Oberle v. Fogliani, 82 Nev. 428, 420 P.2d 251 (1966); Ex parte Merton, 80 Nev. 435, 395 P.2d 766 (1964).
In Franklin v. District Court, 85 Nev. 401, 455 P.2d 919 (1969), we stated that: "As a general proposition we approve the notion that appellate review should be postponed, except in narrowly defined circumstances, until after final judgment has been rendered by the trial court." Id. at 403, 455 P.2d at 921 (emphasis added). In circumstances such as those present in the instant case, where abuse is so patent and deprivation purportedly so crucial to the accused, an extraordinary remedy must be sought, because no post-judgment appeal will be available to review the error complained of, absent compelling reasons. To the extent that State v. Rollings, 58 Nev. 58, 68 P.2d 907 (1937) (we reached the merits of a post-conviction claim that a preliminary examination was held beyond the statutory limit, but denied relief), is inconsistent with this opinion, it is expressly overruled.
In so holding, we emphasize that this case is decided on these facts alone. We reaffirm our holding in Franklin, finding that the instant case presents one of the narrowly defined circumstances perceived in Franklin.
Finally, appellant has not challenged the sufficiency of the evidence which supports his convictions. Indeed, "Where there is substantial evidence to support a verdict in a criminal case, as the record indicates exists in this case, the reviewing court will not disturb the verdict nor set aside the judgment." Sanders v. State, 90 Nev. 433, 434, 529 P.2d 206, 207 (1974).
The judgments of conviction are affirmed.
Thompson, J., concurs.
NRS 174.035(1) provides:
A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a ptea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and consequences of the plea. (Emphasis added.)
This error assumes increased significance when considered in light of the deprivations suffered by the person incarcerated. Pretrial confinement subjects one to public scorn, interrupts income, adversely affects familial relationships, and jeopardizes the accused's employment.
Moreover, it is arguable that because appellant has been convicted and his pretrial incarceration is ended, this claim has become moot. Cf. Gernstein v. Pugh, 420 U.S. 103, 110 n.11, 118-19 (1975) (holding reached in the fourth amendment probable cause context). But see Coleman v. Alabama, 399 U.S. 1 (1970) (an accused is entitled to counsel at a preliminary hearing, it being a critical stage because of information potentially discoverable).
NRS 171.186 provides:
The magistrate or master shall inform the defendant of the complaint against him and any affidavit filed therewith, of his right to retain counsel, of his right to request the assignment of counsel if he is unable to obtain counsel, and of his right to have a preliminary examination. He shall also inform the defendant that he is not required to make a statement and that any statement made by him may be used against him. The magistrate shall allow the defendant reasonable time and opportunity to consult counsel, and shall admit the defendant to bail as provided in this Title.