                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                VICENTE WAYNE LADUA,                                  No. 65878
                Appellant,
                                                                                 1`
                vs.
                THE STATE OF NEVADA,                                              MAY 1 9 2016
                Respondent.
                                                                                      AC
                                                                                              4 ite
                                                                                                .
                                                                                                DEMAN



                                       ORDER OF AFFIRMANCE                                 UTY-CLERK


                           This is an appeal from a judgment of conviction, pursuant to a
                guilty plea, for attempted battery with substantial bodily harm. Eighth
                Judicial District Court, Clark County; James M. Bixler, Judge.
                            Vicente Ladua pleaded guilty to attempted battery with
                substantial bodily harm, a category D felony or gross misdemeanor. When
                he entered his plea, two guilty plea agreements were filed in open court.
                The only difference between the two agreements is a handwritten
                amendment stating that Ladua agreed that the charge would be treated as
                a felony and that he agreed that he would receive prison time if he failed
                to report for a presentence interview. These changes became necessary
                because, on the morning Ladua entered his guilty plea, he requested a
                reduction in bail. Ladua and his counsel initialed the handwritten
                amendment.
                            When the district court asked Ladua how he pleaded to the
                charge, Ladua responded, "No contest." Defense counsel corrected him,
                and Ladua said that he pleaded guilty. Defense counsel then informed the
                court that the guilty plea agreement did not reflect the settlement, so the
                court passed the matter until the end of its morning calendar.
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                             When the court recalled Ladua's case, defense counsel said
                 that the parties agreed that the wobbler, a crime that can be treated as
                 either a gross misdemeanor or a felony, would receive felony treatment
                 and that Ladua would serve prison time if he failed to appear for a
                 Presentence Investigation Report (PSI) interview. Ladua confirmed that
                 he understood and signed the agreement. He also confirmed that he
                 initialed the handwritten changes and that he read the agreement and
                 discussed it with his attorney.
                             Almost two months after the arraignment hearing, Ladua
                 finally posted bail. After his release, Ladua failed to report to parole and
                 probation for a PSI interview and parole and probation submitted a
                 "Failure to Appear" PSI report to the district court.
                             At the sentencing hearing, defense counsel informed the court
                 that Ladua wished to withdraw his guilty plea. Ladua claimed that the
                 various versions of the plea agreement confused him, so he did not enter
                 his plea voluntarily, knowingly, and intelligently. Ladua argued that the
                 first draft of the agreement, which Ladua did not sign, listed the charge as
                 a wobbler, but the filed agreements did not address that the charge was a
                 wobbler. He said that the plea agreement was unclear that the charge
                 would be treated as a felony. Ladua also noted that, during the plea
                 canvass, the court misstated the victim's name and the page number of
                 Ladua's signature on the agreement.
                             At the hearing on Ladua's motion, the State argued that the
                 handwritten portions in the agreement would not have been necessary had
                 Ladua not wanted a reduction in bail so that he could be released from
                 custody. During argument, the court commented that due to the various
                 versions of the agreement that there may have been confusion. The State,

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                  however, argued that the district court's perception of confusion was
                  incorrect because Ladua required the changes in order to get his bail
                  reduced. The State further explained that while Ladua was out on bail,
                  federal authorities returned him to custody. Because the result of the
                  instant case would impact his sentence in his federal case, the State
                  surmised, Ladua wanted the district court to treat his case as a gross
                  misdemeanor. Defense counsel replied that Ladua did not have the
                  federal charges when he decided he wanted to withdraw his guilty plea.
                              Ultimately, the court determined that Ladua pleaded guilty
                  freely and voluntarily and denied his motion and sentenced him. The
                  court adjudicated Ladua guilty of a felony and ordered that he serve 19 to
                  48 months in the Nevada Department of Corrections.
                              On appeal, Ladua argues that the district court abused its
                  discretion when it denied his presentence motion to withdraw his guilty
                  plea because (1) the written guilty plea agreement and the district court's
                  oral plea canvass were inconsistent; and (2) Ladua did not enter his guilty
                  plea voluntarily, knowingly, or intelligently. We disagree.
                              A criminal defendant may withdraw a guilty plea prior to
                  sentencing, NRS 176.165, and a trial court may grant a "motion to
                  withdraw one's plea before sentencing . . . for any substantial reason the
                  granting of the privilege seems fair and just."     State v. Second Judicial
                  Dist. Court, 85 Nev. 381, 385, 455 P.2d 923, 926 (1969) (internal quotation
                  marks omitted). Nevada courts "apply a more relaxed standard to
                  presentence motions to withdraw guilty pleas than to post-sentencing
                  motions." Molina v. State, 120 Nev. 185, 191, 87 P.3d 533, 537 (2004).
                  "However, guilty pleas are presumptively valid, especially• when entered
                  on advice of counsel" Id. at 190, 87 P.3d at 537.

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                             In Stevenson v. State, we stressed that "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." 131
                 Nev., Adv. Op. 61, 354 P.3d 1277, 1281 (2015). The trial court must
                 "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." Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986),
                 superseded by statute on other grounds as stated in Hart v. State, 116 Nev.
                 558, 562, 1 P.3d 969, 971 (2000). We review a district court's
                 determination of the validity of a guilty plea for an abuse of discretion. Id.
                 Whether the inconsistencies in the oral plea canvass and the written guilty
                 plea agreement constitute a substantial reason warranting withdrawal of
                 the guilty plea agreement
                             Ladua complains that the district court abused its discretion
                 when it denied his motion to withdraw his guilty plea agreement because
                 the court's oral plea canvass was inconsistent with the written guilty plea
                 agreement. He complains of two, specific inconsistencies: (1) the court
                 misstated the victim's name and (2) the court erroneously stated that
                 Ladua signed the guilty plea agreement on page five instead of page six.
                 However, Ladua fails to prove that signing the agreement on page six
                 (instead of page five) or that misstating the victim's name is material.
                 Ladua also fails to prove that these alleged inconsistencies constitute a
                 ‘`substantial reason" that makes granting the withdrawal motion "fair and
                 just." See State v. Second Judicial Dist. Court, 85 Nev. at 385, 455 P.2d at
                 926. Accordingly, we conclude that the district court did not abuse its
                 discretion when it denied Ladua's motion to withdraw his guilty plea.




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                      Whether Ladua entered his guilty plea voluntarily, knowingly, and
                      intelligently
                                  Ladua claims that he did not enter his plea knowingly,
                      voluntarily, or intelligently, but this argument is belied by the record.
                      Ladua's plea is presumptively valid because he had the advice of counsel
                      throughout the proceedings.     See Molina v. State, 120 Nev. 185, 190, 87
                      P.3d 533, 537 (2004). Moreover, the district court canvassed Ladua very
                      thoroughly and determined that he understood the charge, the
                      consequences of the plea, the contents of the agreement, the handwritten
                      changes to the agreement, and that he was entering his plea freely and
                      voluntarily. The district court also established that Ladua knew that he
                      did not have any lawful basis for beating the victim.
                                  The record further shows that the district court personally
                      addressed Ladua during the plea canvass. Although Ladua initially
                      attempted to enter a no contest plea, he subsequently conferenced with his
                      attorney and then pleaded guilty. Ladua also twice affirmed that the
                      charge would be handled as a felony and that he would serve prison time if
                      he failed to appear for a PSI interview.
                                  We conclude that the district court's plea canvass was
                      thorough and that the court record demonstrates that Ladua understood
                      the charges against him and the consequences of his guilty plea. The
                      record additionally demonstrates that Ladua entered his plea voluntarily,
                      knowingly, and intelligently. Ladua's answers to the district court's
                      questions in the canvass are unequivocal and emphatic.
                                  Ladua seeks to capitalize on the court's comment at the
                      motion hearing that, due to multiple drafts, Ladua may have been
                      confused when he entered his plea. However, the court's comment does
                      not constitute a substantial reason to reverse its denial of Ladua's motion.
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                The court asked the State to respond to its concern that Ladua may have
                been confused because changes were made to his guilty plea agreement in
                court on the morning Ladua entered his plea. The State explained that
                the changes were necessary because Ladua requested to be released from
                custody or to have his bail reduced. Because Ladua had not previously
                made such a request, the State told the court, the plea agreement had to
                be changed. The State then explained that it believed that Ladua wanted
                to withdraw his plea because he had not appeared at parole and probation
                for a PSI interview, which meant that Ladua would serve prison time.
                The court acknowledged that interlineated agreements were common and
                denied Ladua's motion to withdraw his guilty plea.
                             The totality of the circumstances shows that the three drafts
                of the plea agreement did not confuse Ladua because the changes were
                made at his request. The district court simply requested that the State
                respond to its concern and Ladua's argument that Ladua may have been
                confused. Therefore, we conclude that the district court did not abuse its
                discretion. Accordingly, we
                             ORDER the judgment of conviction AFFIRMED.



                                        Parraguirre


                    7-3cAA   cea.t.1
                HOTqA                         J.                                     J.


                                              J.                                     J.
                Gibbons

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                    cc: Hon. James M. Bixler, District Judge
                         McCullough, Perez & Dobberstein, Ltd.
                         Dickinson Wright PLLC
                         Attorney General/Carson City
                         Clark County District Attorney
                         Eighth District Court Clerk




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