Opinion
No. 79139-COA
06-05-2020
JORGE VASQUEZ-RIVERO, A/K/A SALOME RIVERA GUZMAN, Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF AFFIRMANCE
Jorge Vasquez-Rivero appeals from a judgment of conviction entered pursuant to an Alford plea of burglary and second-degree murder. Eighth Judicial District Court, Clark County; Douglas W. Herndon, Judge.
North Carolina v. Alford, 400 U.S. 25 (1970).
Vasquez-Rivero argues the district court erred by denying his presentence motion to withdraw his Alford plea. In his motion, Vasquez-Rivero contended he should be permitted to withdraw his plea because he was innocent and he was forced to plead guilty because his counsel did not sufficiently review the evidence prior to his plea.
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.
At the evidentiary hearing, Vasquez-Rivero testified he did not commit the offenses and only accepted the plea offer because he felt pressured to do so. Counsel also testified and stated he reviewed the evidence and the State's plea offer with Vasquez-Rivero. Counsel noted that Vasquez-Rivero's DNA was discovered at the crime scene on clothing used to bind the victim. Counsel stated he explained to Vasquez-Rivero that he faced life in prison if he were to be convicted at trial and he believed the State's offer of 10 to 25 years in prison to be a fair offer. Counsel testified he discussed the plea offer with Vasquez-Rivero and explained it was ultimately Vasquez-Rivero's decision as to whether to accept the offer.
At the conclusion of the evidentiary hearing, the district court found that by entering an Alford plea, Vasquez-Rivero had maintained his innocence but concluded acceptance of the plea offer was in his best interest. The district court further found that the status of the evidence of Vasquez-Rivero's guilt, particularly the DNA evidence, had not changed since entry of his plea. The district court further found that Vasquez-Rivero failed to demonstrate his counsel improperly pressured him into accepting the plea offer.
The district court found, based on the totality of the circumstances, Vasquez-Rivero did not demonstrate a fair and just reason to permit withdrawal of his plea. After review of the record, we conclude Vasquez-Rivero has not demonstrated the district court abused its discretion by denying his motion to withdraw his Alford plea. See Hubbard v. State, 110 Nev. 671, 675, 877 P.2d 519, 521 (1994) (reviewing the district court's denial of a motion to withdraw guilty plea for an abuse of discretion).
Vasquez-Rivero also asserts the district court abused its discretion at the evidentiary hearing by sustaining the State's objection concerning the relevance of Vasquez-Rivero's testimony regarding his belief that his wife took valuables from the victim. "District courts are vested with considerable discretion in determining the relevance and admissibility of evidence." Archanian v. State, 122 Nev. 1019, 1029, 145 P.3d 1008, 1016 (2006). We conclude Vasquez-Rivero has failed to demonstrate that the district court abused its discretion by concluding the testimony was irrelevant. Accordingly, we
ORDER the judgment of conviction AFFIRMED.
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Bulla cc: Hon. Douglas W. Herndon, District Judge
Nevada Defense Group
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk