Benjamin C. Durham, Las Vegas, for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark County, for Respondent.
Before the Court En Banc.
Appellant Javier Armenta-Carpio went to trial facing strong evidence, including his own admissions, that he had sexual contact with a child. Under the circumstances, defense counsel made a strategic decision to concede that there had been some sexual contact between Armenta-Carpio and the victim and to concentrate instead on the extent of the contact and whether the State had charged Armenta-Carpio with more offenses than the evidence could support. After this strategy became apparent during defense counsel's opening statement, the trial court sua sponte inquired whether defense counsel had discussed the strategy with Armenta-Carpio and whether Armenta-Carpio had agreed to the strategy. The court received affirmative responses to both questions.
On appeal, we are asked whether the district court's inquiry about the concession strategy was sufficient given our decision in Hernandez v. State, 124 Nev. 978, 194 P.3d 1235 (2008), that when faced with a concession of guilt by defense counsel during trial, the district court must canvass the defendant to determine whether he knowingly and voluntarily consented to the concession of guilt. Although the district court's inquiry here did not fully comply with Hernandez, we conclude that the rationale underlying Hernandez is unsound and the opinion therefore must be overruled. We now hold, consistent with Florida v. Nixon, 543 U.S. 175, 188, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004), that a concession-of-guilt strategy is not the equivalent of a guilty plea and therefore the trial judge has no obligation to canvass a defendant concerning a concession-of-guilt strategy; instead, the reasonableness of counsel's performance is a matter to be determined in an appropriate proceeding based on the inquiry that generally applies to ineffective-assistance-of-counsel claims. Given that holding, any deficiencies in the canvass conducted in this case do not warrant relief from the judgment of conviction.
FACTS AND PROCEDURAL HISTORY
Armenta-Carpio was charged with attempted sexual assault of a child under 14 years of age, five counts of lewdness with a child under 14 years of age, attempted lewdness with a child under 14 years of age, and child abuse and neglect. All of the charges involved his daughter and occurred over a five-year period. During opening statement at trial, defense counsel related to the jury that " [t]hings happen[ed] between my client and his daughter," and therefore, according to counsel, the case was not about whether
Armenta-Carpio had sexual contact with the victim but whether the State had overcharged the case. Defense counsel explained to the jury that the victim told Child Protective Services about three incidents— not eight as the State charged— and that Armenta-Carpio's police statement was " pretty consistent" with what the victim told the police. Thereafter, in a hearing outside the jury's presence, the district court queried Armenta-Carpio about whether he had agreed to counsel's strategy to concede guilt as to some conduct while challenging the number of incidents alleged by the State. Armenta-Carpio responded that he had. Counsel made similar concessions during closing arguments, suggesting to the jury that although Armenta-Carpio had some sexual contact with the victim, it was not as extensive as the State contended. The jury disagreed and found Armenta-Carpio guilty of all the charges. At sentencing, the district court determined that the attempted-sexual-assault count merged with one of the lewdness counts and therefore did not adjudicate Armenta-Carpio on the attempted-sexual-assault count. This appeal followed.
Relying on Hernandez, Armenta-Carpio argues that the district court's canvass concerning the concession strategy was inadequate, and therefore, his consent was involuntary and unknowing. Armenta-Carpio acknowledges that he did not object to the district court's canvass. We therefore review his claim for plain error affecting his substantial rights. Gallego v. State, 117 Nev. 348, 365, 23 P.3d 227, 239 (2001) (concluding that failure to object generally precludes appellate review but this court has discretion to address any errors that are plain from record and affect defendant's substantial rights), abrogated on other grounds by Nunnery v. State, 127 Nev.
__, __ n. 12, 263 P.3d 235, 253 n. 12 (2011), cert. denied, 567 U.S. __, 132 S.Ct. 2774, 183 L.Ed.2d 643 (2012).
Hernandez involved an appeal from an order denying a postconviction habeas petition. One of the ineffective-assistance claims challenged trial counsel's concession that Hernandez was culpable for the victim's murder. 124 Nev. at 989, 194 P.3d at 1242. In particular, Hernandez argued that trial counsel failed to secure his consent to the concession. Relying primarily on State v. Perez, 135 N.C.App. 543, 522 S.E.2d 102, 106 (1999), this court concluded that " [a] concession of guilt involves the waiver of a constitutional right that must be voluntary and knowing." Hernandez, 124 Nev. at 990, 194 P.3d at 1243. Although the issue presented involved counsel's performance, we went beyond that issue " to address the proper procedure when a defense strategy at trial includes a concession of guilt." Id. We explained that " [a]t a minimum," the district court should canvass the defendant outside the presence of the jury and the State to ensure and make findings on the record that the defendant ...