                                                      131 Nev., Advance Opinion la I

                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                JOSEPH JAMIE STEVENSON,                              No. 62965
                Appellant,
                vs.                                                         FILED
                THE STATE OF NEVADA,
                Respondent.
                                                                            AUG 1 3 2015
                                                                          TRAGIE K. LINDEMAN
                                                                         CL Ely,r ti

                                                                           ti-e-
                                                                               d: CV CLERK
                           Appeal from a judgment of conviction, pursuant to guilty
                plea, of two counts of attempted sexual assault. Eighth Judicial District
                Court, Clark County; Elissa F. Cadish, Judge.
                           Affirmed.


                Casey A. Landis, Las Vegas,
                for Appellant.

                Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson.
                District Attorney, and Steven S. Owens, Chief Deputy District Attorney,
                Clark County,
                for Respondent.




                BEFORE SAITTA, GIBBONS and PICKERING, JJ.




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                                                   OPINION'

                  By the Court, PICKERING. J.:
                                 NRS 176.165 allows a defendant who has pleaded guilty, but
                  not been sentenced, to petition the district court to withdraw his plea.
                  When this court first examined NRS 176.165, we held that a court may
                  grant such motions for any substantial reason that is "fair and just."   See
                  State v. Second Judicial Dist. Court (Bernardelli), 85 Nev. 381, 385, 455
                  P.2d 923, 926 (1969). Many years later, we significantly narrowed that
                  holding, stating that the only relevant question when determining
                  whether a defendant presented a fair and just reason sufficient to permit
                  withdrawal of his plea is whether the plea was knowingly, voluntarily, and
                  intelligently entered.    Crawford v. State, 117 Nev. 718, 72L22, 30 P.3d
                  1123, 1125 - 26 (2001). In this appeal, we consider whether Crawfords
                  exclusive focus on the validity of the plea is supported by NRS 176.165.
                  We hold that it is not. We also hold that appellant failed to present a fair
                  and just reason favoring withdrawal of his plea and therefore affirm his
                  judgment of conviction.
                                                        I.
                                 Appellant Joseph Stevenson was charged with numerous
                  offenses relating to his sexual attacks of three women between 2007 and
                  2009. The evidence against him appeared to be strong, consisting of



                        1 Thisopinion has been circulated among all justices of this court,
                  any two of whom, under TOP 13(b), may request en bane review of a case.
                  The two votes needed to require en banc review in the first instance of the
                  question of disavowing in part Crawford v. State, 117 Nev. 718, 30 P.3d
                  1123 (2001), were not cast.



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                  identifications by the women and a DNA Match. The cases were
                  consolidated, and Stevenson chose to represent himself. As trial
                  approached, he attempted to obtain a surveillance video of the Cheetahs
                  gentlemen's club parking lot where one of the women was sexually
                  assaulted. When it became clear that the State had lost the video,
                  Stevenson moved to dismiss the charges. The district court denied his
                  motion on March 9, 2011. On November 9, shortly before trial was set to
                  begin, Stevenson informed the district court that Cheetahs still had the
                  actual machine that the club had used to record surveillance footage:
                  According to Stevietison, the manager had unplugged the machine when
                  the video had been requested, but it required a password that she did not
                  know and therefore she could not retrieve the recording. Stevenson
                  argued that the video should exist on the machine's hard drive and he
                  would not be ready for trial until he saw it. The parties decided that a
                  computer technician would attempt to "break into" the machine and access
                  the video overnight. The next day, without any explanation, Stevenson
                  pleaded guilty to two counts of attempted sexual assault.
                              On February 21, 2012, before sentencing, Stevenson moved to
                  withdraw his plea on the ground that he had been misled about the
                  existence of the video. According to Stevenson, he had only pleaded guilty
                  because his court-appointed standby counsel told him that the video could
                  not be viewed unless the machine was sent back to the company that
                  made it, which would take several months and could erase the video. But
                  after he pleaded guilty, Stevenson allegedly learned that the video could
                  be extracted in mere days and there was no risk of damaging it in the
                  process. The district court conducted an evidentiary hearing regarding
                  this claim where Stevenson's investigator, the computer technician, and

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                Cheetahs' manager testified. After their testimony, the district court
                denied Stevenson's motion pursuant to Crawford, 117 Nev. at 721-22, 30
                P.3d at 1125-26, finding that his plea was entered into knowingly,
                voluntarily, and intelligently.


                            Stevenson argues that Crawford s exclusive focus on whether
                the plea was knowing, voluntary, and intelligent lacks foundation in NRS
                176.165. He points out that, before Crawford, • this .court had interpreted
                NRS 176.165 to permit the withdrawal of a guilty plea before sentencing
                for any "fair and just" reason, which included reasons beyond just whether
                the plea was validly entered. See Bernardelli, 85 Nev. at 385, 455 P.2d at
                926 ("The granting of the motion to withdraw one's plea before sentencing
                is proper where for any substantial reason the granting of the privilege
                seems fair and just." (internal quotation marks omitted)); see also Mitchell
                v. State, 109 Nev. 137, 141, 848 P.2d 1060, 1062 (1993) (holding that the
                appellant presented a fair and just reason to withdraw her plea where she
                had a credible claim of innocence, the State would not be prejudiced, and
                only a minor amount of money was involved).
                                                     A.
                             In order to resolve Stevenson's contention, it is necessary to
                understand how this court's interpretation of NRS 176.165 has evolved
                over time. In relevant part, NRS 176.165 provides that a defendant who
                has pleaded guilty may petition the court to withdraw his plea "before
                sentence is imposed or imposition of sentence is suspended.' Although the
                statute makes clear that a defendant can move to withdraw his plea, it
                says nothing about the circumstances in which his motion should be
                granted. This court first outlined these circumstances shortly after NRS

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                176.165 was enacted. In Bernardelli, the defendant argued that the
                district court abused its discretion by denying his motion to withdraw his
                plea. 85 Nev. at 385, 455 P.2d at 926. Because the statute was silent
                regarding the issue, we looked to federal courts for guidance, recognizing
                that NRS 176.165 was modeled after an almost identical federal rule, Fed.
                R. Crim. P. 32(d). 2 Id. Relying on Gearhart v. United States, 272 F.2d 499
                (D.C. Cir. 1959), we held that a district court may grant a motion to
                withdraw a guilty plea before sentencing "where for any substantial
                reason the granting of the privilege seems 'fair and just.'   Bernardelli, 85
                Nev. at 385, 455 P.2d at 926. 3
                              In cases subsequent to Bernardelli, we did not explain what
                constituted a fair and just reason sufficient to permit withdrawal of a plea.
                Instead, we acted on a case-by-case basis and considered the totality of the
                circumstances to determine whether allowing withdrawal would be fair to
                the defendant and the State. But we were not always careful to explain
                the test we were applying, see Jezierski v. State, 107 Nev. 395, 396, 812


                         1965, the Nevada Legislature directed a commission to "prepare
                      2 In
                a new code of substantive law" after determining that the criminal code in
                existence at the time was outdated. Assemb. Concurrent Res. 9, 53d Leg.,
                1965 Nev. Stat. 1507. The commission recommended that the Legislature
                adopt certain Federal Rules of Criminal Procedure which were not already
                covered by state rules, including the rule permitting withdrawal of guilty
                pleas, Rule 32(d). Report of the Subcornm. for Revision of the Criminal
                Law to the Legis. Comm'n, 3. The Legislature agreed and adopted NRS
                176.165 almost verbatim from Rule 32(d). 1967 Nev. Stat., ch. 523, § 245,
                at 1434. Rule 32(d) has undergone several revisions and now exists as
                Fed. R. Crim. P. 11(d).

                      3 Therequirement that a proffered reason be substantial" appears to
                have been our own.



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                 P.2d 355, 356 (1991) (reversing based upon "public policy" considerations):
                 Mitchell 109 Nev. at 141, 848 P.2d at 1062 (reversing without mentioning
                 the "fair and just" language), and a discussion of whether the plea was
                 validly entered began to creep into our analysis, Mitchell, 109 Nev. at 140,
                 848 P.2d at 1061 (explaining that the defendant bore the burden of
                 demonstrating that her plea "was not entered knowingly and intelligently"
                 (quoting Bryant v. State,    102 Nev. 268, 721 P.2d 364 (1986))). This
                 confusion came to a head in Crawford, when, for the first time, we focused
                 the "fair and just" analysis solely upon whether the plea was valid, holding
                 that "[tic) determine whether the defendant advanced a substantial, fair,
                 and just reason to withdraw a plea, the district court must . . . determine
                 whether the defendant entered the plea voluntarily, knowingly, and
                 intelligently." 117 Nev. at 721-22, 30 P.3d at 1125 - 26. Since Crawford, we
                 have repeatedly observed that the only relevant question when
                 considering whether a defendant should be permitted to withdraw his plea
                 before sentencing is whether the plea was entered into knowingly,
                 voluntarily, and intelligently. In applying this standard, we have refused
                 to permit withdrawal of pleas that were valid even if the defendant
                 presented an otherwise fair and just reason for withdrawing his plea.
                                                      B.
                             We now turn to the question of whether the withdrawal
                 standard announced in        Crawford is supported by NRS 176.165.
                 "[questions of statutory construction, including the meaning and scope of
                 a statute, are questions of law, which this court reviews de novo." City- of
                 Reno v. Reno Gazette-Journal, 119 Nev. 55, 58, 63 P.3d 1147, 1148 (2003).
                 "When Nevada legislation is patterned after a federal statute or the law of
                 another state, it is understood that the courts of the adopting state usually

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                       follow the construction placed on the statute in the jurisdiction of its
                       inception." Advanced Sports Info., Inc. v. Novotnak,     114 Nev. 336, 340,

                       956 P.24806, 809 (1998) (internal quotation marks omitted).
                                   As we observed in Bernardelli, NRS 176.165 was modeled
                       after Fed. R. Crim. P. 32(d). Around the time that the statute was
                       enacted, federal courts interpreting Rule 32(d) allowed a defendant to
                       withdraw his guilty plea 'if for any reason the granting of the privilege
                       seems fair and just."    Gearhart, 272 F.2d at 502 (quoting Kercheval v.
                       United States, 274 U.S. 220, 224 (1927)); see also United States v.
                       Stayton, 408 F.2d 559, 561 (3d Cir. 1969) ("In weighing motions for
                       withdrawal of a guilty plea before sentencing, the test to be applied by the
                       trial courts is fairness and justice."). What constituted a fair and just
                       reason was unsettled, and a conflict eventually emerged between courts
                       who held that withdrawal should be permitted in almost every
                       circumstance and courts who held that the defendant must first present a
                       plausible ground for withdrawal. Fed. R. Crim. P. 32(d) advisory
                       committee's note (1983). 4 But under either view, withdrawal was
                       permitted for reasons other than merely whether a plea was knowing,
                       voluntary, and intelligent.   See, e.g., Kadwell v. United States, 315 F.2d
                       667, 670 (9th Cir. 1963) ("Rule 32(d) imposes no limitation upon the
                       withdrawal of a guilty plea before sentence is imposed, and such leave
                       should be freely allowed" (internal quotation marks omitted));        United
                       States v. Sambro, 454 111 .2d 918, 924 (D.C. Cir. 1971) ("For example, a



                             4Congress eventually adopted the latter position. Fed. R. Crim. P.
                       32(d) advisory committee's note (1983); United States v. Martinez, 785
                       F.2d 111, 115-16 (3d Cir. 1986).


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                judge may but need not allow presentence withdrawal when the defendant
                establishes that there are circumstances which might lead a jury to refuse
                to convict notwithstanding his technical guilt of the charge. Or, a judge
                might allow withdrawal because the defendant has become aware of some
                collateral consequences of conviction which he wants to avoid." (internal
                citation omitted)). More recently, federal courts have expressly rejected
                the notion that the "fair and just" analysis turns upon the validity of the
                plea.   United States v. Ortega-Ascanio, 376 F.3d 879, 884 (9th Cir. 2004).
                Thus, the statement in Crawford which focuses the "fair and just" analysis
                solely upon whether the plea was knowing, voluntary, and intelligent is
                more narrow than contemplated by NRS 176.165. We therefore disavow
                Crawford s exclusive focus on the validity of the plea and affirm 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.


                             Having determined that a district court may grant a
                defendant's motion to withdraw his guilty plea before sentencing for any
                reason where permitting withdrawal would be fair and just, we turn now
                to the reasons Stevenson has given as to why withdrawal was warranted.
                The crux of Stevenson's argument below as to why he should be allowed to
                withdraw his plea was that the members of his defense team lied about
                the existence of the video in order to induce him to plead guilty. The
                district court considered this contention and gave Stevenson considerable
                leeway to demonstrate how he was lied to or misled. Stevenson struggled
                to articulate a cohesive response, pointing instead to circumstances which,
                viewed in context, were neither inconsistent nor suspicious. After

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                      considering Stevenson's arguments, as well as the testimony presented at
                      the multiple evidentiary hearings, the district court found that no one lied
                      to Stevenson about the time it would take to determine whether the video
                      could be extracted or otherwise misled him in any way. The district court
                      also found that Stevenson's testimony in this regard was not credible. We
                      must give deference to these findings so long as they are supported by the
                      record, see Little v. Warden, 117 Nev. 845, 854, 34 P.3d 540, 546 (2001)
                      (giving deference to factual findings made by the district court in the
                      course of a motion to withdraw a guilty plea), which they are. Based on
                      these findings, withdrawal was not warranted on this ground.
                                  Similarly unconvincing is Stevenson's contention that he was
                      coerced into pleading guilty based on the compounded pressures of the
                      district court's "erroneous" evidentiary •ruling regarding his motion to
                      suppress the video, standby counsel's pressure to negotiate a plea, and
                      time constraints. We need not consider whether the lower court's ruling
                      regarding the video was correct, because even assuming it was not, undue
                      coercion occurs when "a defendant is induced by promises or threats which
                      deprive the plea of the nature of a voluntary act," Doe v. Woodford, 508
                      F.3d 563, 570 (9th Cir. 2007) (internal quotation marks omitted), not
                      where a court makes a ruling later determined to be incorrect,           see
                      generally Brady v. United States, 397 U.S. 742, 757 (1970) ("[Al voluntary
                      plea of guilty intelligently made in the light of the then applicable law
                      does not become vulnerable because later judicial decisions indicate that
                      the plea rested on a faulty premise."). Moreover, time constraints and
                      pressure from interested parties exist in every criminal case, and there is
                      no indication in the record that their presence here prevented Stevenson
                      from making a voluntary and intelligent choice among the options

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                   available. See Doe, 508 F.3d at 570 ("The test for determining whether a
                   plea is valid is whether the plea represents a voluntary and intelligent
                   choice among the alternative courses of action open to the defendant.'
                   (internal quotation marks omitted)); Miles v. Dorsey, 61 F.3d 1459, 1470
                   (10th Cir. 1995) ("Although deadlines, mental anguish, depression, and
                   stress are inevitable hallmarks of pretrial plea discussions, such factors
                   considered individually or in aggregate do not establish that [a
                   defendant's] plea was involuntary.").
                               Finally, we reject Stevenson's implied contention that
                   withdrawal was warranted because he made an impulsive decision to
                   plead guilty without knowing, definitively, whether the video could be
                   viewed. Stevenson did not move to withdraw his plea for several months,
                   which contradicts his suggestion that he entered his plea in a state of
                   temporary confusion while in the throes of discovering that the video was
                   not easily accessible. See United States v. Alexander, 948 F.2d 1002, 1004
                   (6th Cir. 1991) (explaining that one of the goals of the fair and just
                   analysis "is to allow a hastily entered plea made with unsure heart and
                   confused mind to be undone, not to allow a defendant to make a tactical
                   decision to enter a plea, wait several weeks, and then obtain a withdrawal
                   if he believes that he made a bad choice in pleading guilty" (internal
                   quotation marks omitted)); United States v. Barker, 514 F.2d 208, 222
                   (D.C. Cir. 1975) ("A swift change of heart is itself strong indication that
                   the plea was entered in haste and confusion[.]"). Most importantly,
                   Stevenson relied upon the uncertainty surrounding the video as leverage
                   to negotiate an extremely favorable plea despite the apparently strong
                   evidence against him. See United States v. Ensminger, 567 F.3d 587, 593
                   (9th Cir. 2009) ("The guilty plea is not a placeholder that reserves [a

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                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)).
                              Considering the totality of the circumstances, we have no
                difficulty in concluding that Stevenson failed to present a sufficient reason
                to permit withdrawal of his plea. Permitting him to withdraw his plea
                under the circumstances would allow the solemn entry of a guilty plea to
                "become a mere gesture, a temporary and meaningless formality
                reversible at the defendant's whim." Barker, 514 F.2d at 221. This we
                cannot allow. 5
                              For these reasons, we affirm



                                                                                    J.


                We concur:




                Saitta


                     79:24L
                Gibbons
                                              ,



                         5 Stevenson
                                   urges us to consider his "colorable claim of innocence"
                when evaluating whether he presented a fair and just reason for
                withdrawing his plea. See Woods v. State, 114 Nev. 468, 475, 958 P.2d 91,
                95-96 (1998). Stevenson fails to support his contention that he has a
                colorable claim of innocence.


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