State v. Dist. Ct. Hoxie (Aaron) ( 2014 )

 motion. In a hearing on the motion, the district court confirmed with
Hoxie that he wished to withdraw his guilty plea to attempted coercion
and plead guilty to conspiracy to commit coercion, a gross misdemeanor.
The district court granted the motion, determining that "[b]ecause the
defendant has already successfully completed his probation and he has
been honorably discharged, despite the fact that this was not part of the
original plea negotiations, given the stellar way in which the defendant
has performed, I'm going to grant his request and permit [him] to plead
guilty to conspiracy to commit coercion, a gross misdemeanor." The
district court subsequently entered an amended judgment of conviction
adjudicating Hoxie of conspiracy to commit coercion and sentenced him to
"credit for time served." This writ petition followed.
A writ of mandamus may issue to compel the performance of
an act which the law requires "as a duty resulting from an office, trust or
station," NRS 34.160, or to control a manifest abuse or arbitrary or
capricious exercise of discretion, see Round Hill Gen. Improvement Dist. v.
Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981). Mandamus is an
extraordinary remedy, and it is within the discretion of this court to
determine if a petition will be considered. See Poulos v. Eighth Judicial
Dist. Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982). A writ of
prohibition may issue to arrest the proceedings of a district court
exercising its judicial functions, when such proceedings are in excess of
the jurisdiction of the district court. NRS 34.320. Neither writ will issue
if the petitioner has a plain, speedy, and adequate remedy in the ordinary
course of the law. See NRS 34.170; NRS 34.330. Petitioner bears the
burden of demonstrating that our intervention by way of extraordinary
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relief is warranted. Pan u. Eighth Judicial Dist. Court, 120 Nev. 222, 228,
88 P.3d 840, 844 (2004). Because the State cannot appeal the amended
judgment of conviction, we elect to exercise our discretion and consider the
petition)
The State challenges the district court's authority to allow
Hoxie to withdraw his guilty plea to a felony and enter a guilty plea to a
gross misdemeanor charge after completing his sentence. We first begin
with the district court's decision to allow Hoxie to withdraw his guilty plea
to attempted coercion. 2 "Following sentencing, a guilty plea may be set
aside only to correct a manifest injustice." Baal v. State, 106 Nev. 69, 72,
787 P.2d 391, 394 (1990); 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."). The district court allowed
Hoxie to withdraw his guilty plea because he successfully completed
probation and his performance while on probation was "stellar." While
Hoxie's successful completion of probation is commendable, that
'The State appealed from the amended judgment of conviction, but
this court dismissed the appeal for lack of jurisdiction.
2 InHarris 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 made after sentencing for persons in custody on
the conviction being challenged. However, any person who is no longer in
custody is not subject to the exclusive-remedy language in NRS
34.724(2)(b) regardless of whether the remedy is incident to the
proceedings in trial court, noting the writ of coram nobis as an exception
to the exclusive-remedy provision. 130 Nev. n.1, 329 P.3d 619,
622 n.1 (2014).
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circumstance does not constitute a manifest injustice that warrants
withdrawal of his guilty plea. 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)). We therefore conclude that the district court manifestly
abused its discretion by allowing Hoxie to withdraw his guilty plea to
attempted coercion. See State v. Eighth Judicial Dist. Court (Armstrong),
127 Nev. „ 267 P.3d 777, 780 (2011) (defining manifest abuse of
discretion and arbitrary or capricious exercise of discretion in context of
mandamus).
Even if we assume that adequate grounds existed to allow
Hoxie to withdraw his guilty plea, the district court manifestly abused its
discretion by allowing him to plead guilty to conspiracy to commit coercion
because it lacked authority to do so. "Whether to prosecute and what
charge to file or bring before the grand jury are decisions that generally
rest in the prosecutor's discretion." United States v. Batchelder, 442 U.S.
114, 124 (1979); see United States v. Miller, 722 F.2d 562, 564 (9th Cir.
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1983) (observing that prosecutor's discretion in charging decisions is
"almost absolute"); 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."); State v. Foss, 556 N.W.2d 540,
540 (Minn. 1996) ("Generally, a prosecutor has broad discretion in the
exercise of the charging function and ordinarily, under the separation-of-
powers doctrine, a court should not interfere with the prosecutor's exercise
of that discretion."); State v. Walsh, 17 P.3d 591, 595 (Wash. 2001)
(Alexander, C.J., concurring) ("Under the principles of separation of
powers, the charging decision is for the prosecuting attorney."). This court
recognized long ago that "[j]udicial [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." Galloway v.
Truesdale, 83 Nev. 13, 20, 422 P.2d 237, 242-43 (1967). Therefore,
"judicial power, and the exercise thereof by a judicial function, cannot
include a power or function that must be derived from the basic
Legislative or Executive powers." Id. at 21, 422 P.2d at 243; see Nev.
Const. art. 3, § 1 (providing that government powers are divided into three
separate departments—Legislative, Executive, and Judicial—and that "no
persons charged with the exercise of powers properly belonging to one of
these departments shall exercise any functions, appertaining to either of
the others, except in the cases expressly directed or permitted in this
constitution"). Here, the district court allowed Hoxie to plead guilty to an
offense that was never charged by the State. No statute or constitutional
provision authorized the district court's action and therefore we conclude
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that it manifestly abused its discretion by allowing Hoxie to plead guilty to
a gross misdemeanor charge of conspiracy to commit coercion. 3 See
Armstrong, 127 Nev. at 267 P.3d at 780. 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 the amended judgment of conviction.
J.
Hardesty
J.
Douglas Cherry
cc: Hon. Elizabeth Goff Gonzalez, District Judge
Clark County District Attorney
Clark County Public Defender
Eighth District Court Clerk
We note but do not address the provisions relating to Pardon's
3
Board relief in Nev. Const. art. 5, § 14 and NRS 213.020.
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