Watkins (Jonathan) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
JONATHAN EDWARD WATKINS, No. 68243
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Re spcmdent. MAR 1 7 2016
TRADE K LINDEMAN
CLERK OF SUPREME COURT
BY
DEPUTY CLERK
ORDER OF REVERSAL AND REMAND
This is a pro se appeal from an order of the district court
dismissing a postconviction petition for a writ of habeas corpus. Second
Judicial District Court, Washoe County; Patrick Flanagan, Judge.
In his petition, appellant Jonathan Watkins claimed that the
district court erred in interpreting his prior motion to vacate an illegal
sentence as a motion to correct a clerical mistake and amending the
judgment of conviction to include restitution outside his presence. We
conclude that the district court erred in dismissing Watkins' petition as
procedurally barred without conducting an evidentiary hearing. See Nika
v. State, 124 Nev. 1272, 1300-01, 198 P.3d 839, 858 (2008) (observing that
a postconviction petitioner is entitled to an evidentiary hearing on his
claims of good cause only if he "asserts specific factual allegations that are
not belied or repelled by the record and that, if true, would entitle him to
relief'). Watkins' claim is not untimely as it could not have been raised
until after the filing of the amended judgment of conviction. See Sullivan
v. State, 120 Nev. 537, 541, 96 P.3d 761, 764 (2004) ("[I]f the claims
presented in a petition filed within one year of the entry of the amended
judgment challenge the proceedings leading to substantive amendment to
the judgment and could not have been raised in prior proceedings, there
SUPREME COURT may be no delay attributable to the 'fault of the petitioner."). Although he
OF
NEVADA could have raised the instant challenge to the amended judgment of
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conviction on direct appeal, see NRS 34.810(1)(b)(2), his claim that he was
not informed of the filing of the amended judgment of conviction until
after the deadline passed for a timely appeal is not belied by the record
and could, if credible, demonstrate good cause to excuse the procedural
default. Moreover, as Watkins' claim that the district court erred in
imposing restitution without conducting a hearing may have merit, see
Martinez v. State, 115 Nev. 9, 13, 974 P.2d 133, 135 (1999) (providing a
defendant "is entitled to challenge restitution sought by the state and may
obtain and present evidence to support that challenge"), an evidentiary
hearing is warranted to determine if Watkins would suffer prejudice from
the failure to consider this claim. Therefore, we remand this matter to the
district court to conduct an evidentiary hearing on Watkins' assertion that
the late delivery of his amended judgment of conviction provided good
cause to excuse his failure to raise the instant claim in a direct appeal.'
Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order. 2
J.
J. Piett. cup , J.
Saitta Pickering
'The district court may exercise its discretion to appoint counsel for
the post-conviction proceedings. NRS 34.750(1).
This order constitutes our final disposition of this appeal. Any
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subsequent appeal shall be docketed as a new matter.
SUPREME COURT
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NEVADA
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cc: Hon. Patrick Flanagan, District Judge
Jonathan Edward Watkins
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
SUPREME COURT
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