                                                         131 Nev., Advance Opinion   65
                             IN THE SUPREME COURT OF THE STATE OF NEVADA


                      THE STATE OF NEVADA,                                 No. 66117
                      Appellant,
                      vs.                                                              FILED
                      TERRANCE REED SMITH,
                      Respondent.                                                      SEP 0 3 2015
                                                                                         !E_K. L INDEMAN




                                  Appeal from a district court order granting a post-conVibtion
                      petition for a writ of habeas corpus. Second Judicial District Court,
                      Washoe County; Scott N. Freeman, Judge.
                                 Affirmed.

                      Adam Paul Laxalt, Attorney General, Carson City; Christopher J. Hicks,
                      District Attorney, and Jennifer P. Noble, Deputy District Attorney,
                      Washoe County,
                      for Appellant.

                      Richard F. Cornell, Reno,
                      for Respondent.


                      BEFORE SAITTA, GIBBONS and PICKERING, JJ.


                                                      OPINION'

                      PER CURIAM:
                                  Terrance Smith pleaded no contest to one count of child abuse
                      resulting in substantial bodily harm The State argues that the district

                            'We originally affirmed the judgment of the district court in an
                      unpublished order filed on April 15, 2015. Smith subsequently moved for
                      publication of our disposition as an opinion. See NRAP 36(f). Cause
                      appearing, we grant the motion and issue this opinion in place of our prior
                      unpublished order.
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                court abused its discretion when it found that the actions of the Washoe
                County Department of Social Services (DSS) coerced Smith into pleading
                no contest. We conclude that the district court did not abuse its discretion
                in concluding that those actions amounted to coercion and that Smith's no-
                contest plea was therefore involuntary.

                                  FACTS AND PROCEDURAL HISTORY
                            Smith's two-month-old daughter suffered a spiral fracture of
                her femur on November 30, 2010, purportedly while in Smith's care.
                Smith has always maintained his innocence of child abuse, but DSS
                concluded that Smith broke the leg in an act of child abuse and sought and
                obtained legal custody over the infant Smith's wife often had physical
                custody of their daughter, but at times DSS sought and/or obtained
                physical custody of the infant and placed her in foster care. As noted in
                the district court order partially granting Smith's habeas petition, DSS
                indicated that it would consent to returning both physical and legal
                custody to Smith's wife but that doing so "was solely dependent upon
                [Smith's] incarceration." Indeed, after Smith was sentenced to prison in
                May 2012, DSS closed the case and returned legal and physical custody of
                the infant to Smith's wife.
                            Smith filed a timely post-conviction petition for a writ of
                habeas corpus in which he argued that he should be allowed to withdraw
                his no-contest plea because it was coerced and thus not voluntary. Based
                on the facts above, the district court concluded that Smith was coerced
                into pleading no contest and issued an order partially granting the
                petition, directing the judgment of conviction and sentence be set aside,
                and concluding that he be allowed to withdraw his no-contest plea. The
                State appeals.
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                                                   DISCUSSION

                               The State argues on appeal that the district court abused its
                   discretion when it found that DSS's legal, constitutional actions amounted
                   to coercion and concluded that Smith was entitled to withdraw his plea. A
                   no-contest plea is presumed valid, and Smith bore the burden below of
                   demonstrating that it was not entered into knowingly, voluntarily, and
                   intelligently. See Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368
                   (1986), limited on other grounds by Smith v. State, 110 Nev. 1009, 1010
                   n.1, 879 P.2d 60, 61 n.1 (1994); see also State v. Lewis, 124 Nev. 132, 133
                   n.1, 178 P.3d 146, 147 n.1 (2008) (noting that a no-contest plea is
                   equivalent to a guilty plea insofar as how the court treats a defendant).
                   We "presume that the lower court correctly assessed the validity of the
                   plea, and we will not reverse the lower court's determination absent a
                   clear showing of an abuse of discretion."      Bryant, 102 Nev. at 272, 721
                   P.2d at 368. "An abuse of discretion occurs if the district court's decision is
                   arbitrary or capricious or if it exceeds the bounds of law or reason."
                   Jackson v. State, 117 Nev. 116, 120, 17 P.3d 998, 1000 (2001).
                               The State first argues that the district court ignored
                   important facts regarding Smith's behavior and compliance with DSS and
                   regarding DSS's intent to protect the child. In a post-conviction
                   proceeding, it is the province of the district court to weigh the evidence
                   and state the facts as it found them.      See Bryant, 102 Nev. at 272, 721
                   P.2d at 367-68 (noting the factual nature of an invalid-plea claim and that
                   it is "the duty of the trial court to review the entire record to determine
                   whether the plea was valid"). And this court defers to factual findings of
                   the district court.   Riley v. State, 110 Nev. 638, 647, 878 P.2d 272, 278
                   (1994). The district court received the evidence to which the State refers

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                        yet still came to the findings to which the State objects. The State points
                        to nothing to suggest that the district court ignored the evidence and has
                        thus not demonstrated that the decision constituted an abuse of discretion.
                                    The State next argues that the plea was not coerced just
                        because it was motivated by a desire to avoid a more serious consequence.
                        The district court specifically found, however, that there was no evidence
                        to support the theory that Smith entered the no-contest plea to avoid a
                        greater charge or to get a lesser penalty. Rather, the district court found
                        that Smith's plea was motivated by the "unique" circumstances of DSS's
                        "inflexible," "unyielding," and "uncompromising" position in his family
                        court case. The district court's findings are supported by the record, and
                        accordingly, were not an abuse of discretion.
                                    The State finally argues that nothing about DSS's actions
                        were unconstitutional and implies that constitutional, lawful actions of an
                        agency cannot amount to coercion. In support, the State cites only to Iaea
                        v. Sunn, 800 F.2d 861 (9th Cir. 1986), but that case tends to support the
                        opposite conclusion. The defendant in Iaea argued that his guilty plea was
                        coerced by a threat from his brother to withdraw bail and a threat from
                        his counsel to withdraw from the case if he took it to trial. Id. at 866-67.
                        The United States Court of Appeals for the Ninth Circuit observed that
                        voluntariness is determined based on an examination of the totality of the
                        circumstances and, therefore, "[w]hen a guilty plea is challenged as being
                        the product of coercion, [the court's] concern is not solely with the
                        subjective state of mind of the defendant, but also with the constitutional
                        acceptability of the external forces inducing the guilty plea."   Id. at 866.
                        The reference to the "constitutional acceptability of the external forces
                        inducing the guilty plea" does not relate to the constitutionality of the

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                external forces in isolation but instead relates to whether the external
                forces, such as promises or threats, deprived the plea of the nature of a
                voluntary act, making the plea involuntary.    See id. at 866-67. This is
                reflected in the Ninth Circuit's decision to remand in laea for the federal
                district court to determine whether the threats were made and, if so, to
                consider their coercive impact on the voluntariness of the plea, without
                finding that either challenged action was unconstitutional. Id. at 867-68.
                laea thus suggests that actions that may be lawful and constitutional can
                nevertheless be unduly coercive and thereby render a plea involuntary.
                The State has therefore failed to demonstrate that the district court
                abused its discretion in partially granting the petition. We therefore
                affirm. 2




                                        Saitta



                Gibbons                                   Pickering




                       2 TheState takes issue with Smith's argument below that his plea
                was similar to package plea deals where a defendant pleads guilty in order
                to benefit a third party. The State argues that the two situations are not
                analogous. As the district court did not base its decision on Smith's
                analogy, the State's argument need not be addressed.

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