Black (Demetrius) v. State

 Clowers explained all of the original charges that Black was facing in this
matter, as well as in two other matters, and the maximum penalties Black
would face on those charges. Ms. Clowers stated that the plea
negotiations "package[d] everything up" and greatly limited Black's
sentencing exposure. She then stated she wanted to make sure that Black
understood that by rejecting the negotiation, he would "open himself to
being sent to prison for over a hundred years." The following exchange
then occurred:
THE COURT: And you think it's in your best
interest to go to trial? You've explained to him,
Mr. Sanft, that I'm probably the toughest
sentencer in the building.
MR. SANFT: I think both he and his family
understand that.
THE COURT: Okay. That's fine. Sometimes, Mr.
Sanft, it's just a slow plea.
MR. SANFT: Yes, Your Honor.
[Colloquy between Counsel and the Defendant]
THE COURT: And, Mr. Sanft, explain to him
what — had the codefendant just made admissions
that he and Mr. Black did this stuff.
MR. SANFT: Yes, Your Honor. He —
THE COURT: Proof problem is now not quite as
difficult, to me.
MR. SANFT: No, Your Honor, it's not.
[Colloquy between Counsel and the Defendant]
THE COURT: All right. 9:30, Tuesday. We'll
pick a jury. Talk to him about an Alford plea, if
you want, take an Alford plea.
MS. CLOWERS: I'm fine with that, Judge.
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THE COURT: Do you want to talk to him about
an Alford plea?
MR. SANFT: I'll just have a second with him out
here, Your Honor.
[Matter trailed at 9:24 a.m.]
[Matter recalled at 9:52 a.m.]
THE COURT: C280797, Demetrius Black.
Why don't you get Mr. Black back in? Are
we going to trial on Tuesday?
MR. SANFT: Your Honor, I'd like to have an
opportunity of my client speaking to his brother.
I've spoken with the COs and they've agreed to
allow him to at least have a few words before —
THE COURT: Yes, if they — I'm going to step out.
MR. SANFT: Yes, Your Honor.
THE COURT: State will step out as well. The
attorneys.
• • •
We'll let you get — we'll clear—we'll clear the
State out. I'll leave. Staff will leave.
MR. SANFT: Staff could stay here, Your Honor. I
don't — there's nothing privileged about it. I think
there just —
THE COURT: Okay.
MR. SANFT: — needs to be a conversation. So.
[Matter trailed at 9:53 a.m.]
[Matter recalled at 10.17 a.m.]
THE COURT: C280797, Demetrius Black.
My understanding this case is negotiated.
MR. SANFT: It has been, Your Honor.
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Thereafter, the judge conducted a plea canvass and accepted Black's
Alford plea.
Prior to sentencing, Black filed a proper person motion to
withdraw his plea. The judge appointed counsel to assist Black with the
motion and counsel filed a supplemental motion to withdraw the guilty
plea. Black asserted that the judge improperly participated in the plea
negotiations and the participation coerced him into pleading guilty. He
further stated that he wanted to proceed to trial. The judge denied the
motion, saying that he was not trying to force a negotiation, but was
bringing matters up to see if counsel had adequately discussed them with
Black, which the judge believed he was obligated to do.
We conclude that the judge improperly participated in the
discussions of the plea agreement. See Cripps v. State, 122 Nev. 764, 770-
71, 137 P.3d 1187, 1191 (2006) ("[J]udicial participation in the formulation
or discussions of a potential plea agreement [are prohibited] with one
narrow, limited exception."). Although it was proper for the district court
to allow the parties to make a record that a plea had been offered,
identifying the details of the offer; the plea offer had been communicated
to Black; and Black rejected the offer, see Missouri v. Frye, U.S. ,
, 132 S. Ct. 1399, 1408-09 (2012), the judge's statement that he is "the
toughest sentencer in the building," his opinion that the State would now
have a less difficult time proving the charges against Black, and his
suggestion that Black consider taking an Alford plea were not required
under Frye and were arguably coercive. Further, Black has demonstrated
that the judge's participation was "a material factor affecting this] decision
to plead guilty" and, therefore, he has met his burden of demonstrating
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that the judge's participation was not harmless. Id. at 771, 137 P.3d at
1192 (quotation marks omitted). Accordingly, we conclude that the
district court erred by denying Black's motion to withdraw his guilty plea,
and we
ORDER the judgment of conviction REVERSED AND
REMAND this matter to the district court for proceedings before a
different district court judge consistent with this order.
Pieki24 tlif
Pickering
J.
Saitta
cc: Hon. Douglas Smith, District Judge
Nguyen & Lay
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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