                 with memory and concentration, and the prosecution violated Brady v.
                 Maryland, 373 U.S. 83 (1963). The record supports the district court's
                 findings and conclusions, and we conclude the district court did not abuse
                 its discretion by denying Mullen's motion to withdraw his guilty plea.
                             Mullen claims that newly discovered evidence, the victim's
                 mental health records, supports a finding of actual and factual innocence
                 of the original charge. However, `Nile question of an accused's guilt or
                 innocence is generally not at issue in a motion to withdraw a guilty plea."
                 Hargrove v. State, 100 Nev. 498, 503, 686 P.2d 222, 226 (1984). Moreover,
                 the district court found that Mullen exaggerated the differences between
                 the victim's statements to her mental health counselor and the victim's
                 prior statements and that the victim's statements to her counselor did not
                 contradict her statements to police or testimony at the preliminary
                 examination. The evidence supports the district court's findings, and we
                 conclude the district court did not abuse its discretion.
                             Second, Mullen claims that the district court abused its
                 discretion by finding that he had no right to access the victim's mental
                 health records. In resolving Mullen's motion to withdraw his guilty plea,
                 the district court determined that Mullen "cannot use the [victim's] mental
                 health records for any purpose, including to support the instant Motion to
                 Withdraw Guilty Plea." However, the district court went on to address the
                 merits of Mullen's contentions, including the victim's mental health
                 records, before denying the motion. Therefore, Mullen fails to
                 demonstrate prejudice because the district court considered the mental
                 health records when resolving his motion to withdraw his guilty plea. To
                 the extent Mullen claims the district court erred by finding that he would



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                    not have been able to use the records at trial, Mullen pleaded nobo
                    contendere, rendering this issue moot.'
                                Third, Mullen claims that the district court erred in denying
                    his motion to dismiss based on vindictive prosecution. The district court
                    did not address the merits of this claim because, on the day the motion
                    was to be argued, Mullen changed his plea, and the district court denied
                    the motion as moot. This issue was not preserved for appeal and was
                    waived. See Webb v. State, 91 Nev. 469, 470, 538 P.2d 164, 165 (1975).
                                Having considered Mullen's claims and concluded that no
                    relief is warranted, we
                                ORDER the judgment of conviction AFFIRMED.




                                                       gaitta


                                                                                       J.




                                                                                       J.



                           'Furthermore, we note that Mullen had a pending motion for a
                    qualified protective order, in which he sought to obtain the victim's mental
                    health records, when he chose not to litigate the motion and plead nobo
                    contendere. See United States v. Ensminger, 567 F.3d 587, 593 (9th Cir.
                    2009) ("The guilty plea is not a placeholder that reserves [a defendant's]
                    right to our criminal system's incentives for acceptance of responsibility
                    unless or until a preferable alternative later arises. Rather it is a grave
                    and solemn act which is accepted only with care and discernment."
                    (internal quotation marks omitted)).



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                 cc: Hon. James E. Wilson, District Judge
                      State Public Defender/Carson City
                      Attorney General/Carson City
                      Lyon County District Attorney
                      Carson City District Attorney
                      Carson City Clerk




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