CHARLES B. HARRIS, Appellant,
THE STATE OF NEVADA, Respondent
Proper person appeal from an order denying a motion to withdraw a guilty plea. Eighth Judicial District Court, Clark County; Valorie J. Vega, Judge.
Reversed and remanded.
Charles B. Harris, Indian Springs, in Proper Person.
Catherine Cortez Masto, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark County, for Respondent.
Hardesty, J. We concur: Gibbons, C.J., Pickering, J., Parraguirre, J., Douglas, J., Cherry, J. SAITTA, J., concurring.
BEFORE THE COURT EN BANC.
Appellant Charles Harris pleaded guilty and was convicted of several felony offenses. Harris did not challenge his guilty plea before sentence was imposed and did not file an appeal from the judgment of conviction. Instead, he filed a motion to withdraw the guilty plea approximately seven months after the judgment of conviction was entered.
A post-conviction petition for a writ of habeas corpus is the exclusive remedy for challenging the validity of a conviction or sentence aside from direct review of a judgment of conviction on appeal and " remedies which are incident to the proceedings in the trial court." NRS 34.724(2)(a). However, in Hart v. State, 116 Nev. 558, 1 P.3d 969 (2000), this court allowed another remedy when it summarily concluded that a motion to withdraw a guilty plea filed after the judgment of conviction is a remedy that is " incident to the proceedings in the trial court." Because our Hart decision failed to analyze the phrase " incident to the proceedings in the trial court," or consider the purpose behind the exclusive-remedy provision in NRS 34.724(2), it is unsound. After examining the Uniform Post-Conviction Procedure Act, Nevada's post-conviction history, and the temporal definition of the phrase at issue, we conclude that, after sentence has been imposed, the statutory post-conviction habeas petition takes the place of a motion to withdraw a guilty plea. We therefore overrule Hart and reverse the district court's order denying the motion on the merits and remand for the district court to treat Harris' motion as a post-conviction petition for a writ of habeas corpus and to provide Harris with an opportunity to cure any pleading defects.
FACTS AND PROCEDURAL HISTORY
Harris was charged in 2010 with burglary, forgery, and theft for cashing a forged check from the Perini Building Company at the Orleans Hotel and Casino. Additionally, the State had filed a notice of intent to seek habitual criminal adjudication based on five prior felony convictions. Harris entered a guilty plea to the offenses of burglary, forgery, and theft in exchange for the State's agreement not to seek habitual criminal adjudication at sentencing. The judgment of conviction was entered on November 16, 2011, and Harris received two consecutive sentences of 24 to 60 months and a consecutive sentence of 12 to 34 months. No direct appeal was taken.
Instead, on the date the judgment of conviction was entered, Harris filed a proper person post-conviction petition for a writ of habeas corpus in the district court alleging that he received ineffective assistance of counsel. The district court denied the petition, and this court affirmed the decision of the district court on appeal. Harris v. State, Docket No. 60289 (Order of Affirmance, November 15, 2012). Harris then filed a second post-conviction petition for a writ of habeas corpus on February 29, 2012, raising similar claims to those raised in the first petition.
While his second petition was pending, on June 21, 2012, Harris filed a motion to withdraw a guilty plea. In his motion, Harris claimed: (1) the information, as to the forgery count, failed to set forth the elements of ownership and lack of authority, making his plea to forgery unknowing and involuntary; (2) the prosecutor failed to disclose that it was without an accuser; (3) he received ineffective assistance of counsel; and (4) his plea was involuntary and unknowing. Despite this being Harris' third post-conviction challenge to his conviction, the district court denied the motion on the merits.
NRS 176.165 provides in relevant part that " [t]o correct manifest injustice, the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea." This language has in the past been construed to allow for a post-sentence motion to withdraw a guilty plea. See, e.g., Hart, 116 Nev. at 561-62, 1 P.3d at 971 (recognizing the availability of a post-conviction motion to withdraw a guilty plea); Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986) (holding that claims challenging the validity of the plea should be raised in a post-conviction petition or a motion to withdraw a guilty plea); Hargrove v. State, 100 Nev. 498, 501-02, 686 P.2d 222, 224-25 (1984) (recognizing the right to appeal from the denial of a post-conviction motion to withdraw a guilty plea).
Because the validity of a guilty plea may be challenged in a post-conviction petition for a writ of habeas corpus, see NRS 34.810(1)(a) (recognizing that the scope of claims available to challenge a conviction ...