Warden, Nevada State Prison v. Peters , 83 Nev. 298 ( 1967 )

OPINION

By the Court,

Zenoff, J.:

In 1965 Ronald Nicholas Peters pleaded guilty to a count of first degree burglary and a count of grand larceny. He was not represented by counsel. He was sentenced to a term of from 1 to 15 years on the burglary charge and from 2 to 14 years on the other, the sentences were to run consecutively, and the burglary sentence was to be served first. No appeal from either conviction was taken and the time for appeal has long since run.

Peters served one year on the burglary charge, was granted parole on that offense, and began serving time on the grand larceny charge. After about a year, he moved through counsel to have the trial court allow him to withdraw the pleas of guilty and to enter new pleas on the grounds that as to the grand larceny charge there in fact had been no asportation.¹ Thus, the only crime of which he could be guilty was an attempt rather than the completed crime.

The district attorney of the county in which the offenses occurred — who was not the same district attorney in office at the time Peters first pleaded guilty — agreed with Peters’ counsel that the point urged was true and consented to the setting aside of the judgment of conviction and the accepting of a guilty plea to the lesser crime. The two attorneys further stipulated that the court could order the new sentence to run concurrently with the burglary sentence, rather than consecutively as originally ordered, although they acknowledged that the court was not bound by that portion of the stipulation.

The trial court accepted the stipulation of counsel, set aside the judgment of conviction for grand larceny, allowed Peters to withdraw his plea of guilty, immediately accepted a plea of guilty to attempted grand larceny, fixed a new determinate sentence of one year to run concurrently with the burglary sentence, and returned Peters to the penitentiary. In the meantime, however, Peters had been paroled on the burglary sentence. When the trial court imposed the concurrent sentence of one year for attempted grand larceny Peters contended that he had served his time and was entitled to immediate release, for which he petitioned the trial court. The trial court agreed with Peters and granted the application for habeas corpus, giving the State ten days in which to appeal to this court— which it did.

Broadly stated, the issue is whether a trial court has the power to set aside a judgment of conviction after a plea of guilty and commencement of sentence.

1. On the original motion the appellant successfully argued the existence of a mistake in the judgment. His motion .to vacate judgment was granted. The State now questions whether this was the proper procedure.

At common law, where all other remedies fail, a mistake of fact which is discovered after judgment may be asserted by the use of the writ of coram nobis. People v. Sullivan, 165 N.Y.Supp.2d 6 (Ct.App. 1957); 13 Syracuse L.Rev. 116 (1961); 57 Nw.U.L.Rev. 467 (1962); Eli Frank, Coram Nobis (1953). In some states, for example Illinois, the courts which had previously abolished the writ of coram nobis allowed the same question to be raised by a motion in the nature of a writ of coram nobis. People v. Crooks, 157 N.E. 218 (Ill. 1927).

We deem the procedural label to be of little importance. The fact remains that courts which make a mistake in rendering a judgment which works to the extreme detriment of the defendant will not allow it to stand uncorrected. In a situation such as this, where, as discussed below, the court has inherent power to reconsider a judgment for good cause shown, we hold that such an issue may be raised by a motion to vacate judgment, though technically in this state the matter probably should have been raised by a petition for habeas corpus. See State ex rel. Orsbom v. Fogliani, 82 Nev. 300, 417 P.2d 148 (1966).

2. The trial court has inherent jurisdiction to vacate or modify its orders and judgments, State v. Lopez, 393 P.2d 263 (Ariz. 1964), and discretion to permit withdrawal of a plea in order to effectuate its efforts. Nagelberg v. United States, 377 U.S. 266 (1964). Justice requires that when a court errs in its adjudication of a defendant, a vacation of the adjudication result in a vacation of the sentence so that the defendant can be returned to his prior status. If a guilty plea is the product of ignorance, fear, inadvertence or coercion, it must be vacated as void since it is violative of constitutional safeguards, Kercheval v. United States, 274 U.S. 220 (1927), and the passage of time does not close the door to its reconsideration. Ward v. Page, 238 F.Supp. 431 (D. Okla. 1965).

For the purposes of this proceeding the term, “jurisdiction,” as usually applied to habeas corpus, is not limited to its traditional meaning, and in such proceedings judicial acts may be annulled if they are determined to be in excess of the court’s powers. In accordance with this principle a defendant is entitled to habeas corpus if there is no material dispute as to the mistake of fact relating to his conviction. There being no dispute that Peters pleaded guilty without counsel to grand larceny when in fact no asportation occurred, it follows that this is a proper case for correction of the error in the judgment, because until then he stands convicted of a crime he did not commit. In re Perez, 48 Cal.Rptr. 809 (1966); People v. Sullivan, 165 N.Y.Supp.2d 6 (1957).

It is worthwhile to note that Rule 32(d) of the Federal Rules of Criminal Procedure expressly incorporates this concept by providing for a motion to withdraw a plea of guilty and set aside the judgment of conviction after sentence in order “to correct manifest injustice.” In Gilinsky v. United States, 335 F.2d 914 (9th Cir. 1964), the court applied Rule 32(d) and held it would clearly be unfair to hold appellant to his guilty plea if he was ignorant of the fact that a multiple-count indictment stated only a single offense. It is no less unfair to allow a guilty plea to stand when appellant was ignorant of the lack of an essential element of the crime of which he stood accused.

When an improper sentence is the sole basis of the complaint no vacation of conviction or adjudication is necessary since justice may be done by correction of the sentence, Lisby v. State, 82 Nev. 183, 414 P.2d 592 (1966); Osborne v. State, 82 Nev. 342, 418 P.2d 812 (1966); Dixon v. State, 83 Nev. 120, 424 P.2d 100 (1967), but if the judgment of conviction for grand larceny is void the sentence for that crime automatically fails. The court is then free to pass a new sentence for the different crime of attempted larceny and, in its discretion, order that it run concurrently with the sentence previously imposed for first degree burglary. This is more than a mere correction of sentence. The underlying purpose in this case is to redress an injury done to a defendant who pleaded guilty to a crime he did not commit. The attempt here was an offense separate and distinct from the burglary and was charged in the information as such. In such a situation NRS 176.150 allows the court discretion to make the sentence concurrent or consecutive.² See also Grieve v. Smith, 173 P.2d 168 (Wash. 1946); Sherman v. United States, 241 F.2d 329 (9th Cir. 1957); Castano v. United States, 313 F.2d 857 (7th Cir. 1963); McKee v. United States, 289 F.2d 557 (7th Cir. 1961) (even without the aid of a statute); Papalardo v. United States, 260 F.2d 326 (6th Cir. 1958); People v. Graham, 18 Cal.Rptr. 134 (D.C.A. 1961); People v. Curtis, 47 Cal.Rptr. 123 (D.C.A. 1965); State v. McNally, 211 A.2d 162 (Conn. 1965).

Affirmed.

Thompson, C. J., concurs.

1 NRS 205.220. "Grand larceny: Definitions; punishment. Every person who shall feloniously steal, take and carry away, lead or drive away the personal goods or property of another, of the value of $100 or more, except a vehicle as defined in NRS 482.135, shall be deemed guilty of grand larceny * *

2 NRS 176.150. “Conviction of two or more offenses: Concurrent and consecutive sentences.

“1. Whenever a person shall be convicted of two or more offenses, and sentence has been pronounced for one offense, the court in imposing any subsequent sentence may, in its discretion, provide that the sentences subsequently pronounced shall run either concurrently or consecutively with the sentence first imposed.

“2. If the court shall make no order with reference thereto, all sentences shall run concurrently; but whenever a person under sentence of imprisonment shall commit another crime and be sentenced to another term of imprisonment, such latter term shall not begin until the expiration of all prior terms.”