State v. Prather (Shawn) ( 2015 )

 conviction to a gross misdemeanor.' The State opposed the motion. Based
on its representations at sentencing, the district court granted the motion
and ordered the State to prepare an amended judgment of conviction
reflecting a gross misdemeanor conviction. This writ petition followed. 2
Because the State cannot appeal the district court's order, we elect to
exercise our discretion and consider the petition. See NRS 34.160
(providing that writ of mandamus may issue to compel performance of act
which law requires "as a duty resulting from an office, trust or station");
NRS 34.170 (providing that writ of mandamus will not issue if petitioner
has plain, speedy, and adequate remedy in ordinary course of law); Pan v.
Eighth Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004);
(observing that petitioner bears the burden of demonstrating that this
court's intervention by way of extraordinary relief is warranted); Poulos v.
Eighth Judicial Dist. Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982)
(observing that mandamus is extraordinary remedy, and it is within this
court's discretion to determine if petition will be considered); Round Hill
Gen. Improvement Din. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534,
536 (1981) (mandamus available to control a manifest abuse or arbitrary
or capricious exercise of discretion).
'Prather previously had filed a motion to amend the judgment of
conviction to reduce his felony conviction to a gross misdemeanor
conviction, but the district court denied the motion, concluding that it
lacked jurisdiction.
2 We provided Prather an opportunity to file an answer to the
petition, but he did not file a response.
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The State challenges the district court's authority to allow
Prather to withdraw his guilty plea and reduce the charge to a gross
misdemeanor after completing his sentence. We agree that there were no
grounds to grant the motion as Prather's successful completion of
probation does not constitute a manifest injustice that must be corrected
by allowing the withdrawal of the guilty plea. 3 See NRS 176.165 ("To
correct manifest injustice, the court after sentence may set aside the
judgment of conviction and permit the defendant to withdraw the plea.");
Baal v. State, 106 Nev. 69, 72, 787 P.2d 391, 394 (1990) ("Following
sentencing, a guilty plea may be set aside only to correct a manifest
injustice."); cf. Rubio v. State, 124 Nev. 1032, 1039, 194 P.3d 1224, 1228
(2008) (observing that district court may grant post-conviction motion to
withdraw a guilty plea that was involuntarily and unknowingly entered to
correct manifest injustice and that manifest injustice may be shown by
ineffective assistance of counsel); State v. Adams, 94 Nev. 503, 505-06, 581
P.2d 868, 869 (1978) ("Manifest injustice within the intendment of NRS
176.165 does not occur from the entry of a guilty plea to a sustainable
charge."); see State v. James, 500 N.W.2d 345, 348 (Wis. Ct. App. 1993) ("A
manifest injustice occurs where a defendant makes a plea involuntarily or
without knowledge of the consequences of the plea—or where the plea is
entered without knowledge of the charge or that the sentence actually
imposed could be imposed." (internal quotation marks omitted)). Further,
'In Harris v. State, we held that a post-conviction petition for a writ
of habeas corpus provides the exclusive remedy for challenging the
validity of a guilty plea after sentencing. 130 Nev. Adv. Op. 47, 329 P.3d
619, 622 n.1 (2014). But because Prather was no longer in custody he
could not file a post-conviction habeas petition. See id.
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while we acknowledge that Prather's motion was prompted by the district
court's comments at sentencing, no statute or constitutional provision
authorized withdrawal of the guilty plea and entry of a judgment on a
reduced charge after Prather had been adjudicated on the felony charge
and completed his sentence and the parties had not negotiated for a
reduced charge upon successful completion of probation. See generally
Cairns v. Sheriff, 89 Nev. 113, 115, 508 P.2d 1015, 1017 (1973) ("The
matter of the prosecution of any criminal case is within the entire control
of the district attorney."); Galloway v. Truesdale, 83 Nev. 13, 20, 422 P.2d
237, 242-43 (1967) (recognizing that "ffludicial [p]ower, or the exercise of
judicial functions cannot include powers or functions that do not stem
from the basic judicial powers and functions set forth in the [Nevada]
Constitution, unless the Constitution otherwise expressly provides").
We therefore conclude that the district court manifestly
abused its discretion by allowing Prather to withdraw his guilty plea to
attempted battery with substantial bodily harm and reducing the
conviction from a felony to a gross misdemeanor. 4 See State v. Eighth
Judicial Dist. Court (Armstrong), 127 Nev. Adv. Op. No. 84, 267 P.3d 777,
780 (2011) (defining manifest abuse of discretion and arbitrary or
capricious exercise of discretion in context of mandamus). Accordingly, we
ORDER the petition GRANTED AND DIRECT THE CLERK
OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the
district court to vacate its order granting Prather's motion to withdraw his
4We note but do not address the provisions relating to Pardon's
Board relief in Nev. Const. art. 5, § 14 and NRS 213.020.
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guilty plea to a felony charge and reducing his conviction to a gross
misdemeanor.
origlas
cc: Hon. Douglas Smith, District Judge
Attorney General/Carson City
Clark County District Attorney
Tannery Law Office
Eighth District Court Clerk
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