Mitchell v. State, 109 Nev.

137 (1993)
848 P.2d 1060
2014 Thomson Reuters. No claim to original U.S. Government Works. 1
109 Nev. 137
Supreme Court of Nevada.
Paula Mae MITCHELL, Appellant,
v.
The STATE of Nevada, Respondent.
No. 22262. | March 18, 1993.
Defendant was convicted in the District Court, Eighth Judicial District, Clark County, Joseph S. Pavlikowski, J., of attempted
burglary, and she appealed. The Supreme Court held that district court abused its discretion in denying defendant's motion to
withdraw her guilty plea.
Reversed and remanded.
West Headnotes (2)
[1] Criminal Law Withdrawal
110 Criminal Law
110XV Pleas
110k272 Plea of Guilty
110k274 Withdrawal
110k274(1) In General
When defendant brings motion to withdraw guilty plea, trial court has to review entire record to determine whether
plea was valid; district court may not simply review plea canvass in vacuum, conclude that it indicates that defendant
understood what he or she was doing, and use that conclusion as sole basis for denying motion to withdraw plea.
N.R.S. 176.165.
11 Cases that cite this headnote
[2] Criminal Law Innocence or Doubt as to Guilt
Criminal Law Time for Application
110 Criminal Law
110XV Pleas
110k272 Plea of Guilty
110k274 Withdrawal
110k274(3) Grounds for Allowance
110k274(8) Innocence or Doubt as to Guilt
110 Criminal Law
110XV Pleas
110k272 Plea of Guilty
110k274 Withdrawal
110k274(9) Time for Application
District court abused its discretion in denying defendant's motion to withdraw her guilty plea to attempted burglary
charge; defendant provided court with credible story explaining her actions and denying any criminal intent, only
minor amount of money was involved, and defendant filed motion to withdraw her plea before sentencing, avoiding
any prejudice to state. N.R.S. 176.165.
Mitchell v. State, 109 Nev. 137 (1993)
848 P.2d 1060
2014 Thomson Reuters. No claim to original U.S. Government Works. 2
6 Cases that cite this headnote
Attorneys and Law Firms
**1060 *138 Patricia M. Erickson, Las Vegas, for appellant.
Frankie Sue Del Papa, Atty. Gen., Carson City, Rex Bell, Dist. Atty. and James Tufteland, Deputy Dist. Atty., Las Vegas, for
respondent.
Opinion
OPINION
PER CURIAM:
On April 27, 1990, appellant Paula Mae Mitchell was arrested at an apartment complex by an officer of the Las Vegas
Metropolitan Police Department. In his arrest report, the officer stated:
Upon arrival I found a female subject, who verbally identified herself as Paula M. Mitchell.... The residents, Brandon Page
and Kathryn Lovejoy were detaining Mitchell. Page said that he and Lovejoy were asleep and woke up when they heard
some coins jingling on the counter. They found Mitchell in the apartment and detained her until I arrived.
Mitchell then stated that she was the maid for the apartment complex. She said that she was sorry for entering the apartment
and that she shouldn't have done it. She said that she had been walking past the apartment window and saw some change and
a pack of cigarettes laying on the counter. She then entered the apartment with her maids [sic] master key and was caught
when the resident woke up.
The state charged appellant in a criminal complaint with one count of burglary. At the preliminary hearing, the deputy public
*139 defender representing appellant informed the justice of the peace that the case had been negotiated, and that appellant had
agreed to plead guilty to one count of attempted burglary. On August 7, 1990, the state filed an amended information charging
appellant with one count of attempted burglary. At appellant's arraignment on August 7, 1990, the district court questioned
appellant extensively about her understanding of the charge and the voluntariness with which she entered her plea. At the end
of the arraignment, the district court accepted appellant's plea of guilty.
Prior to sentencing, on November 20, 1990, appellant filed a motion through counsel to withdraw her guilty plea. Attached
to the motion was an affidavit of defense counsel in which counsel stated that immediately after appellant entered her plea,
she notified counsel that she had misunderstood the negotiations and did not understand that she would be giving up her right
to trial. Counsel further stated that appellant so notified counsel long before **1061 appellant had been interviewed by the
Department of Probation and Parole, and before any recommendation had been made by the department to the district court.
Also attached to the motion was a letter written by appellant explaining in broken English that she was a maid at the apartment
complex and had a master key to every room. The buildings of the complex were designated A, B, C, etc., and the rooms
within each building were numbered identically. On the day in question, appellant was given a list of rooms to clean. Appellant
accidentally went to an apartment which corresponded to a number on her list, but was in the wrong building. When she entered
the apartment, it appeared to be vacant. Tenants sometimes leave loose change in the apartments when they vacate them, and
when appellant saw some loose change, she assumed that it had been left by the tenants. After she had been in the apartment
just a few minutes and had touched nothing but the loose change, she realized that the apartment was still occupied. Appellant
realized that she had mistakenly entered the wrong apartment, but no one would allow her to explain. One occupant of the
apartment held her at gun point until the police arrived. Appellant stated that she never had an opportunity to speak with her
Mitchell v. State, 109 Nev. 137 (1993)
848 P.2d 1060
2014 Thomson Reuters. No claim to original U.S. Government Works. 3
public defender about what really happened because he never had time. Appellant emphasized that she had simply entered the
apartment by mistake and had not entered with the intention to commit a crime.
The state opposed appellant's motion to withdraw her guilty plea. After a hearing, the district court denied appellant's motion.
On April 24, 1991, the district court entered a judgment of conviction of one count of attempted burglary and sentenced appellant
to serve a term of one year in the Nevada State Prison. *140 The district court suspended the sentence and placed appellant
on probation for a period not to exceed one year. This appeal followed.
Appellant contends that the district court abused its discretion in denying her motion to withdraw her guilty plea. Specifically,
appellant argues that the district court failed to review the entire record in deciding whether to allow appellant to withdraw her
plea, and that in doing so, the district court failed to perform its duty as set forth by this court in Bryant v. State, 102 Nev. 268,
721 P.2d 364 (1986). The state contends that a review of the plea canvas alone may be sufficient.
NRS 176.165 provides:
Except as otherwise provided in this section, a motion to withdraw a plea of guilty or of nolo contendere
may be made only before sentence is imposed or imposition of sentence is suspended. To correct manifest
injustice, the court after sentence may set aside the judgment of conviction and permit the defendant to
withdraw his plea.
In Bryant v. State, 102 Nev. 268, 721 P.2d 364 (1986), this court set forth the standard for reviewing challenges to the validity
of a guilty plea. This court stated:
Accordingly, in the future we will no longer permit a defendant to challenge the validity of a guilty plea on
direct appeal from the judgment of conviction. Instead, a defendant must raise a challenge to the validity
of his or her guilty plea in the district court in the first instance, either by bringing a motion to withdraw
the guilty plea, or by initiating a post-conviction proceeding under NRS 34.360 or NRS 177.315. It shall
then be the duty of the trial court to review the entire record to determine whether the plea was valid,
either by reason of the plea canvass itself or under a totality of the circumstances approach. As we have
held in the past, the trial court should view the guilty plea as presumptively valid and the burden should
be on the defendant to establish that the plea was not entered knowingly and intelligently. See generally
Wingfield v. State, 91 Nev. 336, 535 P.2d 1295 (1975). On appeal from the district court's determination,
we will presume that the lower court correctly assessed the validity of the plea, and we will not reverse
the district court's determination absent a clear showing of an abuse of discretion.
Bryant, 102 Nev. at 272, 721 P.2d at 36768 (emphasis added).
[1] Pursuant to Bryant, when a defendant brings a motion to *141 withdraw a guilty **1062 plea, the trial court has a duty
to review the entire record to determine whether the plea was valid. A district court may not simply review the plea canvass
in a vacuum, conclude that it indicates that the defendant understood what she was doing, and use that conclusion as the sole
basis for denying a motion to withdraw a guilty plea.
[2] Under the circumstances of this case, it was a clear abuse of discretion for the district court to deny appellant's motion to
withdraw her guilty plea. Appellant provided the court with a credible story explaining her actions and denying any criminal
intent, and only a very minor amount of money was involved. Moreover, appellant filed her motion to withdraw her plea before
sentencing, thereby avoiding any prejudice to the state. See Jezierski v. State, 107 Nev. 395, 812 P.2d 355 (1991). Thus, viewing
the record as a whole, especially in light of appellant's credible claim of factual innocence and the lack of prejudice to the state,
we conclude that it was a clear abuse of discretion for the district court to deny appellant's motion to withdraw her guilty plea.
Mitchell v. State, 109 Nev. 137 (1993)
848 P.2d 1060
2014 Thomson Reuters. No claim to original U.S. Government Works. 4
Accordingly, we reverse the order of the district court denying appellant's motion to withdraw her guilty plea, and remand this
case to the district court for further proceedings.
1
Parallel Citations
848 P.2d 1060
Footnotes
1 The Honorable Miriam Shearing, Justice, did not participate in the decision of this appeal.
End of Document 2014 Thomson Reuters. No claim to original U.S. Government Works.
Mitchell v. State, 109 Nev. 137
2014 Thomson Reuters. No claim to original U.S. Government Works. 5
Citing References (20)
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5. Bandera v. State
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This is an appeal from a judgment of conviction,
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Mitchell v. State, 109 Nev. 137
2014 Thomson Reuters. No claim to original U.S. Government Works. 6
Treatment Title Date Type Depth Headnote(s)
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9. Brooks v. State
281 P.3d 1157, 1157 , Nev. , (NO. 50991 )
Background: Following defendant's convictions on
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Cited by 10. Rubio v. State
194 P.3d 1224, 1229 , Nev. , (NO. 48459 )
CRIMINAL JUSTICE - Pleas. Interpreter's
representations regarding deportation
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11. State v. Lewis
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CRIMINAL JUSTICE - Appeals. An order granting
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Cited by 12. Petition for a Writ of Certiorari
Mack v. State of Nevada
2010 WL 5132562, *5132562+ , U.S. (Appellate
Petition, Motion and Filing) , (NO. 10-793 )
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Richard JACKSON, Petitioner/Appellant, v.
ATTORNEY GENERAL OF THE STATE OF
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Cited by 14. Appellant's Reply Brief
Clifford STUBBS, Petitioner-Appellant, v. Michael
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2006 WL 2378345, *2378345+ , 9th Cir. (Appellate
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15. Respondents-Appellees' Answering Brief
Clifford STUBBS, Petitioner-Appellant, v. Michael
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2006 WL 2951787, *2951787 , 9th Cir. (Appellate
Brief) , (NO. 05-16640 )
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Cited by 16. Appellant's Opening Brief

Darren Roy MACK, Appellant, v. The State of
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Mentioned by 18. Sotelo v. State
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Mitchell v. State, 109 Nev. 137
2014 Thomson Reuters. No claim to original U.S. Government Works. 7
Treatment Title Date Type Depth Headnote(s)
19. Criminal Procedure, Second Edition s
21.5(a), Withdrawal of plea
Once a defendant has tendered a plea of guilty
to the court, may he ever withdraw that plea as a
matter of right, that is, without making a showing
sufficient to satisfy the court...
2014 Other
Secondary
Source

20. Am. Jur. 2d Criminal Law s 693, Hearing-

Evidence, issues to be considered, and burden
of proof
Am. Jur. 2d Criminal Law
The defendant's guilt or innocence is not at issue
on a motion to withdraw a guilty or no-contest plea.
When a defendant brings a motion to withdraw a
guilty plea, the trial court...
2014 Other
Secondary
Source

1
2
P.2d