Opinion
79465-COA
06-21-2021
RENATO LEE TREJO, Appellant, v. THE STATE OF NEVADA, Respondent.
UNPUBLISHED OPINION
Ordinarily this court will not grant a petition for rehearing in the absence of a request for an answer. See NRAP 40(d). However, this amended order does not alter the ultimate disposition of any claim Trejo raises, and we conclude an answer would be unnecessary under these circumstances. See NRAP 2. Having considered Trejo's petition for rehearing, we grant the petition, vacate our March 19, 2021, order of affirmance, and issue this amended order in its place.
GIBBONS C.J.
Renato Lee Trejo appeals from a judgment of conviction entered pursuant to a guilty plea of two counts of trafficking in a controlled substance. Eighth Judicial District Court, Clark County; Valerie Adair, Judge.
Trejo first argues the district court abused its discretion by denying Trejo's presentence motion to withdraw his guilty plea. In his motion, Trejo argued his guilty plea was invalid because it was coerced when the district court denied Trejo's motion to continue trial and then used that denial to interject itself into the plea process.
A defendant may move to withdraw a guilty plea before sentencing, NRS 176.165, and "a district court may grant a defendant's motion to withdraw his guilty plea before sentencing for any reason where permitting withdrawal would be fair and just." Stevenson v. State, 131 Nev. 598, 604, 354 P.3d 1277, 1281 (2015). In considering the motion, "the district court must consider the totality of the circumstances to determine whether permitting withdrawal of a guilty plea before sentencing would be fair and just." Id. at 603, 354 P.3d at 1281. The district court's ruling on a presentence motion to withdraw a guilty plea "is discretionary and will not be reversed unless there has been a clear abuse of discretion." State v. Second Judicial Dist. Court (Bernardelli), 85 Nev. 381, 385, 455 P.2d 923, 926 (1969).
First, Trejo claims he was coerced into pleading guilty by the district court's decision to deny Trejo's motion to continue trial. While the district court's decision left Trejo with two options that he did not prefer- whether to accept a plea deal or proceed to trial that day-there is no indication in the record that Trejo was deprived of his ability to make a voluntary and intelligent choice among his remaining options. See Stevenson, 131 Nev. at 604, 354 P.3d at 1281 (holding that undue coercion occurs when a defendant is induced by promises or threats which deprive the plea of the nature of a voluntary act and not merely by court rulings even if they are later determined to be incorrect). Therefore, we conclude Trejo fails to demonstrate his guilty plea was the result of coercion.
Second, Trejo claims the district court improperly participated in plea negotiations in violation of Cripps v. State, 122 Nev. 764, 137 P.3d 1187 (2006). In Cripps, the Nevada Supreme Court adopted a bright-line rule prohibiting the district court from participating in plea negotiations between the State and the defense in a criminal prosecution, because such participation carries an inherent risk of improper judicial coercion of a guilty plea. Id. at 770, 137 P.3d at 1191. A district court's involvement in plea negotiations may constitute harmless error. Id. at 771, 137 P.3d at 1192.
Trejo argues the district court improperly participated in plea negotiations by commenting on the simplicity of the State's case and discussing the penal consequences of proceeding to trial. Trejo did not raise these specific arguments in his motion before the district court. Thus, we need not to consider them for the first time on appeal. See Rimer v. State, 131 Nev. 307, 328 n.3, 351 P.3d 697, 713 n.3 (2015). Nevertheless, even assuming these arguments were raised below, they are unpersuasive. The district court mentioned the simplicity of the State's case in the context of whether to grant Trejo's motion to dismiss counsel or his oral motion to continue trial. And the district court mentioned only the minimum term of the charged offenses in the course of having counsel make a record of counsel's reasoning. See United States v. Johnson, 89 F.3d 778, 783 (11th Cir. 1996) (noting that federal courts have consistently held that district ! courts are precluded from discussing "the penal consequences of a guilty plea as compared to going to trial" because such discussions are "inherently coercive, no matter how well-intentioned" (emphasis added)).
Third, Trejo claims there was a breakdown in the attorney-client relationship and the district court failed to conduct a Young hearing. Trejo did not raise these specific arguments in his motion before the district court. Thus we need not consider them on appeal in the first instance. See Rimer, 131 Nev. at 328 n.3, 351 P.3d at 713 n.3. Nevertheless, even assuming these arguments were raised below, they are without merit. Prior to the entry of Trejo's guilty plea, the district court entertained and rejected Trejo's argument regarding the extent of the alleged conflict. In light of Trejo's failure to demonstrate a conflict, the court's inquiry into the conflict, and the untimeliness of Trejo's motion, we conclude the district court conducted a satisfactory Young hearing. See id. (providing the three-part test for reviewing a denial of a motion for substitution of counsel). Trejo next claims the district court erred by not conducting an evidentiary hearing on Trejo's motion to withdraw his guilty plea. Trejo fails to demonstrate the district court abused its discretion by failing to undertake an evidentiary hearing. See Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984) (holding that to warrant an evidentiary hearing, a defendant must raise claims that are not belied by the record and, if true, would entitle him to relief). For the foregoing reasons, we conclude the district court did not abuse its discretion by denying Trejo's presentence motion to withdraw his guilty plea.
Young v. State, 120 Nev. 963, 102 P.3d 572 (2004).
The district court had discretion to summarily deny Trejo's motion to dismiss counsel, because it was filed a mere two days before the start of trial. Cf. Young, 120 Nev. at 968, 102 P.3d at 576 (stating "[w]here a motion for new counsel is made considerably in advance of trial, the [district] court may not summarily deny the motion but must adequately inquire into the defendant's grounds for it" (alterations in original) (quotation marks omitted)).
Finally, Trejo claims the State violated the terms of the plea agreement at sentencing by changing positions on the amount of presentence credit Trejo was entitled to receive and, therefore, he should be allowed to withdraw his plea. Presentence credit was not part of plea agreement, and nothing in the record before this court supports a finding that the number of days' credit Trejo would receive had any impact on his decision to plead guilty. Accordingly, we conclude Trejo has not demonstrated the State breached the plea agreement, and we
ORDER the judgment of conviction AFFIRMED.
We reject Trejo's contention that this court overlooked a challenge to the credit for time served, the impact any such credit calculation had on Trejo's decision to plead guilty, or that he was entitled to an evidentiary hearing below.
TAO J., BULLA J.