Burd (Travis) v. State ( 2013 )

 "When the State enters into a plea agreement, it is held to the
most meticulous standards of both promise and performance with respect
to both the terms and the spirit of the plea bargain." Sparks v. State, 121
Nev. 107, 110, 110 P.3d 486, 487 (2005) (internal quotation marks
omitted). Here, only Burd, not the State, stipulated to a prison term of 48-
120 months if he violated the terms of the plea agreement. Additionally,
the plea agreement also included express terms stating that if Burd failed
to appear for his scheduled sentencing hearing or committed a new
criminal offense, the State "would regain the full right to argue for any
lawful sentence." Burd failed to appear for his sentencing hearing and he
committed a new offense, therefore, we conclude that the State did not
breach the plea agreement by arguing for habitual criminal adjudication.
Second, Burd contends that his guilty plea was not entered
knowingly and intelligently because he "was not on notice that the State
could seek habitual criminal treatment if he violated the guilty plea
agreement." As a result, Burd claims that the district court abused its
discretion by adjudicating him as a habitual criminal. Challenges to the
validity of a guilty plea must generally be raised in the district court in the
first instance by either filing a motion to withdraw the guilty plea or
...continued
State retains the right to argue, but the State agrees to a cap of six (6)
years on the top and will not seek habitual criminal treatment."
(Emphasis added.)
The district court adjudicated Burd as a habitual criminal pursuant
2
to NRS 207.010(1)(a) and sentenced him to 60-150 months.
SUPREME COURT
OF
NEVADA
2
(0) 1947A
oi DMMFM 'Asti
commencing a post-conviction proceeding pursuant to NRS Chapter 34.
See Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986), limited
by Smith v. State, 110 Nev. 1009, 1010 n.1, 879 P.2d 60, 61 n.1 (1994); see
also O'Guinn v. State, 118 Nev. 849, 851-52, 59 P.3d 488, 489-90 (2002).
Burd did not challenge the validity of his plea in the district court and we
conclude that the claim is not appropriate for review on direct appeal. See
O'Guinn, 118 Nev. at 851-52, 59 P.3d at 489-90; see also Ford v. Warden,
111 Nev. 872, 884, 901 P.2d 123, 130 (1995) (holding that an appellant
"cannot change [his] theory underlying an assignment of error on appeal").
Additionally, we conclude that Burd failed to demonstrate that the district
court abused its discretion by adjudicating him as a habitual criminal.
See NRS 207.010(2); O'Neill v. State, 123 Nev. 9, 15-16, 153 P.3d 38, 42-43
(2007); Hughes v. State, 116 Nev. 327, 333, 996 P.2d 890, 893 (2000).
Accordingly, we
ORDER the judgment of conviction AFFIRMED.
J .
Hardesty
cc: Hon. Michelle Leavitt, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
3
(0) 1947A
SMERi