                                   129 Nev., Advance Opinion 54
       IN THE SUPREME COURT OF THE STATE OF NEVADA


JAVIER ARMENTA-CARPIO, A/K/A                          No. 60371
JAVIER CARPIO ARMENTA,
Appellant,
vs.
THE STATE OF NEVADA,
                                                         FILED
Respondent.                                              JUL 2 5 2013



            Appeal from a judgment of conviction, pursuant to a jury
verdict, of five counts of lewdness with a child under the age of 14 years,
attempted lewdness with a child under the age of 14 years, and one count
of child abuse and neglect. Eighth Judicial District Court, Clark County;
Douglas W. Herndon, Judge.
            Affirmed.

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.




                                                                        111,
                                                                               ••
                                                  OPINION

                By the Court, PARRAGUIRRE, J.:
                            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 (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


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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




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with one of the lewdness counts and therefore did not adjudicate Armenta-
Carpio on the attempted-sexual-assault count. This appeal followed.
                               DISCUSSION
            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 (2012).
            Hernandez involved an appeal from an order denying a post-
conviction 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, 522 S.E.2d 102, 106 (N.C.
Ct. App. 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
                understands the strategy behind conceding guilt and advise the defendant
                that conceding guilt relieves the State of its burden of proof for an offense
                and that he has the right to challenge the State's evidence.    Id. at 990-91,
                194 P.3d at 1243.
                            Our conclusion in Hernandez that a concession strategy must
                be voluntary and knowing and the canvass procedures that we embraced
                find their footing in the reasoning set forth in Perez.       The Perez court
                reasoned that a concession of guilt is the functional equivalent of a guilty
                plea because it deprives a defendant of his rights to cross-examination,
                confrontation, and a trial by jury. Perez, 522 S.E.2d at 106. Based on that
                analogy, the Perez court concluded that a concession strategy, like a guilty
                plea, requires the defendant's knowing and voluntary consent "after full
                appraisal of the consequences" reflected on the record. Id.
                            Significant flaws in the Perez court's reasoning are pointed out
                in a Supreme Court decision issued five years after Perez. In Florida v.
                Nixon, the Supreme Court expressly rejected the idea that a concession of
                guilt at trial is the functional equivalent of a guilty plea. 543 U.S. 175,
                188 (2004). The Court explained that unlike a guilty plea, a concession
                strategy preserves the rights accorded a defendant in a criminal trial: (1)
                the prosecution is still required to present competent, admissible evidence
                establishing the essential elements of the charged crimes; (2) the defense
                retains the right to cross-examine prosecution witnesses and pursue
                exclusion of prejudicial evidence; and (3) the defense can seek relief on
                appeal from trial error. Id. As the Supreme Court had observed decades
                earlier, "[a] plea of guilty is more than a confession which admits that the
                accused did various acts; it is itself a conviction; nothing remains but to

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give judgment and determine punishment." Boykin v. Alabama, 395 U.S.
238, 242 (1969). The Supreme Court also rejected the idea that counsel is
automatically barred from pursuing a concession strategy just because the
defendant, informed by counsel, neither consents nor objects to the course
that counsel determines is the best strategy, explaining that the issue in
those cases is whether counsel's representation fell below an objective
standard of reasonableness and prejudiced the defense. Nixon, 543 U.S. at
178-79; see also Strickland v. Washington, 466 U.S. 668 (1984).
            Although the Supreme Court's decision in Nixon was available
when we decided Hernandez, our opinion makes no mention of it and does
not discuss the reasoning underlying Perez in any significant degree. That
is not necessarily surprising as the parties did not address Nixon even
though it involved an ineffective-assistance claim based on a concession of
guilt. Having now considered our reasoning in Hernandez in light of the
Supreme Court's decision in Nixon, we are persuaded that there are
significant differences between a concession strategy at trial and a guilty
plea such that a concession strategy does not involve the waiver of a
constitutional right that must be knowing and voluntary. A concession of
guilt is simply a trial strategy—no different than any other strategy the
defense might employ at trial. As such, there is no reason to conduct a
mid-trial canvass to determine a defendant's knowledge of or consent to
that particular strategy. If a defendant is dissatisfied with the strategy,
he may challenge the reasonableness of counsel's performance. Thus, the
foundation for the canvass requirements set forth in Hernandez is
unsound. The question is whether we are compelled to perpetuate
Hernandez's canvass procedure despite its unsound foundation.
                            "[U]nder the doctrine of stare decisis, we will not overturn
                [precedent] absent compelling reasons for so doing."      Miller v. Burk, 124
                Nev. 579, 597, 188 P.3d 1112, 1124 (2008) (footnote omitted). While we
                are loath to depart from the doctrine of stare decisis, we also cannot
                adhere to the doctrine so stridently that the 'law is forever encased in a
                straight jacket.' Adam v. State, 127 Nev. „ 261 P.3d 1063, 1065
                (2011) (quoting Rupert v. Stienne, 90 Nev. 397, 400, 528 P.2d 1013, 1015
                (1974)). In considering the canvass procedures set forth in Hernandez,
                there are two reasons that our departure from the doctrine of stare decisis
                is warranted. First, the part of Hernandez that prospectively adopts
                procedures that the district court must undertake to ensure that a
                concession is knowing and voluntary went beyond answering the limited
                question that was before the court—whether counsel provided
                constitutionally ineffective assistance by adopting a concession strategy.
                That part of Hernandez therefore was dicta.           See Argentena Consol.
                Mining Co. v. Jolley Urga Wirth Woodbury & Standish, 125 Nev. 527, 536,
                216 P.3d 779, 785 (2009) ("A statement in a case is dictum when it is
                'unnecessary to a determination of the questions involved.' (quoting St.
                James Viii., Inc. V. Cunningham, 125 Nev. 211, 216, 210 P.3d 190, 193
                (2009))). Second, the reasoning underlying the canvass procedure set forth
                in Hernandez is clearly erroneous, particularly viewing that reasoning in
                light of Nixon. These foundational problems with Hernandez reflect more
                than a "[m]ere disagreement" with that decision, Burk, 124 Nev. at 597,
                188 P.3d at 1124 (observing that more than "[m]ere disagreement" is
                required to overturn precedent), requiring that we depart from the
                doctrine of stare decisis to avoid the perpetuation of that error.   See Stocks
                v. Stocks, 64 Nev. 431, 438, 183 P.2d 617, 620 (1947) ("While courts will

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indeed depart from the doctrine of stare decisis where such departure is
necessary to avoid the perpetuation of error, the observance of the doctrine
has long been considered indispensable to the due administration of
justice, that a question once deliberately examined and decided should be
considered as settled." (internal citation and quotation marks omitted)).
We therefore overrule Hernandez to the extent that it holds that a
concession of guilt is the functional equivalent of a guilty plea, triggering
the protections and consequences attendant to entering a guilty plea and
requiring a canvass by the trial court.
            Our decision today does not undermine a defendant's right to
challenge the reasonableness of counsel's concession strategy. We are not
faced with a challenge to the reasonableness of counsel's performance in
this case. Although we have addressed an ineffective-assistance claim
based on a concession strategy for the first time on appeal where the
concession contradicted the defendant's trial testimony, see, e.g., Jones v.
State, 110 Nev. 730, 877 P.2d 1052 (1996), Armenta-Carpio did not raise
an ineffective-assistance claim and, even if he had, the circumstances here
would not allow us to consider such a claim for the first time on appea1. 1
            Because we are persuaded that canvassing a defendant to
ensure knowledge of and voluntary consent to a concession strategy is
unnecessary, we conclude that Armenta-Carpio is not entitled to relief on




      1 Becausewe are not faced with an ineffective-assistance claim, we
express no opinion as to whether Nixon undermines any of our reasoning
in Jones.




                                      8
                the ground that the district court's canvass was inadequate. We therefore
                affirm the judgment of conviction.




                We concur:



                                                  C.J.




                             ittat-t                  J.
                Hardesty


                                                      J.




                                                      J.
                Saitta




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