Lopes (Kimberly) v. Warden C/W 61423 ( 2013 )

 determination concerning the validity of a plea absent a clear abuse of
discretion. See Hubbard v. State, 110 Nev. 671, 675, 877 P.2d 519, 521
(1994). In determining the validity of a guilty plea, this court looks to the
totality of the circumstances. State v. Freese, 116 Nev. 1097, 1105, 13
P.3d 442, 448 (2000).
First, Lopes argues that the district court abused its discretion
by denying her claim that her guilty plea was involuntary because the
district court inappropriately involved itself in plea negotiations during a
pretrial conference in violation of Cripps v. State, 122 Nev. 764, 770-73,
137 P.3d 1187, 1191-93 (2006). The district court found that it violated
Cripps' bright line prohibitions by participating in the plea bargaining
process and conducting an off-record conference regarding potential pleas
yet denied Lopes relief, finding that its participation was not a material
factor in her decision to plead guilty. See id. at 771, 137 P.3d at 1192.
The record supports this determination. The guilty plea agreement in
question had been in negotiations prior to the unrecorded conference, and
while the time limit to accept the plea offer had expired, charges were
added in the interim. Lopes signed the guilty plea agreement several days
after the conference and after multiple meetings with counsel. Almost a
month passed between the conference and when Lopes pleaded guilty and
at no point did she indicate dissatisfaction with the plea or that she felt
compelled to take it. The record also indicates that Lopes pleaded guilty
to the charges because she would gain a substantial benefit in doing so.
Because the error was harmless, we conclude that the district court did
not abuse its discretion by denying this claim.
Second, Lopes argues that the district court abused its
discretion by denying her claim that her guilty plea was involuntary
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because the district court did not sufficiently canvass her regarding
potential coercion due to the "package" nature of the plea, which also
required her husband to plead guilty. The district court denied this claim
because Lopes failed to demonstrate actual coercion, and based upon the
totality of the evidence, the pleas were knowingly and voluntarily entered.
We agree. While the district court did not specifically inquire into
whether Lopes' husband had coerced her to plead guilty, it otherwise took
considerable care to canvass Lopes regarding the plea and there is nothing
in the record as a whole which suggests any coercion. See U.S. v. Spilmon,
454 F.3d 657, 658-59 (7th Cir. 2006) (coercion is not presumed from one
spouse's decision to plead guilty in exchange for leniency for the other); see
also Gardner v. State, 91 Nev. 443, 447, 537 P.2d 469, 471 (1975) (the
defendant must demonstrate that the coercive element in fact coerced him
into making the plea of guilty). We conclude that the district court did not
abuse its discretion by denying this claim.
Third, Lopes argues that the district court abused its
discretion by denying her claim that her guilty plea was involuntary
because she was not aware that the State had to prove she knowingly
aided her husband with the intent that he bribe or intimidate a witness
and thus there was an insufficient factual basis to support her plea to the
crime. See NRS 195.020; NRS 199.240. Lopes also argued that she is
actually innocent of the crime. The district court concluded that a
sufficient factual basis was presented to support the plea and Lopes was
adequately advised regarding the elements of the crime. See Tiger v.
State, 98 Nev. 555, 558, 654 P.2d 1031, 1033 (1982); see also State v.
Gomes, 112 Nev. 1473, 1481, 930 P.2d 701, 707 (1996). We agree.
Further, because she entered a plea pursuant to Alford, Lopes' claim of
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actual innocence was "essentially academic." Hargrove v. State, 100 Nev.
498, 503, 686 P.2d 222, 226 (1984). We conclude that the district court did
not abuse its discretion by denying this claim.
Having considered Lopes' contentions and concluded that no
relief is warranted, we
ORDER the judgment of the district court AFFIRMED.
J.
Hardesty
.tyy-
Parraguirre Cherry
cc: Hon. Michael P. Gibbons, District Judge
Richard F. Cornell
Attorney General/Carson City
Douglas County District Attorney/Minden
Douglas County Clerk
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