Opinion
No. 62628
02-13-2014
THOMAS BOLICH, Appellant, v. THE STATE OF NEVADA, Respondent.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
ORDER OF AFFIRMANCE AND DIRECTIONS TO CORRECT
CLERICAL ERROR IN THE JUDGMENT OF CONVICTION
This is an appeal from a judgment of conviction, pursuant to a guilty plea, of driving under the influence. Eighth Judicial District Court, Clark County; Jennifer P. Togliatti, Judge.
Appellant argues that the district court abused its discretion by denying his presentence motion to withdraw his guilty plea on the ground that his plea was unknowing and involuntary because the analysis of his blood alcohol level was performed by an analyst who was subsequently discredited in an unrelated case. NRS 176.165 permits a defendant to file a motion to withdraw a guilty plea before sentencing. The district court may grant such a motion in its discretion for any substantial reason that is fair and just. State v. Second Judicial Dist. Court, 85 Nev. 381, 385, 455 P.2d 923, 926 (1969). "On appeal from a district court's denial of a motion to withdraw a guilty plea, this court will presume that the lower court correctly assessed the validity of the plea, and we will not reverse the lower court's determination absent a clear showing of an abuse of discretion."' Riker v. State, 111 Nev. 1316, 1322, 905 P.2d 706, 710 (1995) (quoting Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986)). We conclude that the district court did not abuse its discretion in this regard as appellant has presented nothing suggesting that his blood sample was mishandled or inaccurately analyzed and therefore he has not proffered a substantial reason to warrant withdrawal of his guilty plea.
Appellant next argues that the district court erred by denying his motion to consider the constitutional validity of the prior convictions used to enhance the instance offense. However, the district court denied the motion before appellant entered his guilty plea. This court has repeatedly stated that, generally, the entry of a guilty plea waives any right to appeal from events occurring prior to the entry of the plea. See Webb v. State, 91 Nev. 469, 470, 538 P.2d 164, 165 (1975). '"[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. . . . [A defendant] may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.'" Id. (first alteration in original) (quoting Tollett v. Henderson, 411 U.S. 258, 267 (1973)). Because the entry of a guilty plea waives the right to appeal events that occurred before entry of the plea, appellant's challenge does not provide a basis to withdraw the plea.
Finally, appellant contends that the judgment of conviction incorrectly reflects that he was convicted of a category A felony rather than a category B felony. We agree. Therefore, we direct the district court to enter a corrected judgment of conviction reflecting that appellant was convicted of a category B felony. See NRS 484C.410(1).
We note the appellant's sentence to 48 to 144 months falls within the permissible range of punishment. NRS 484C.410.
Accordingly, we
ORDER the judgment of conviction AFFIRMED and direct the district court to correct the judgment of conviction as indicated above.
__________, J.
Pickering
__________, J.
Parraguirre
__________, J.
Saitta
cc: Hon. Jennifer P. Togliatti, District Judge
Carmine J. Colucci & Associates
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk