*1 41 it emphasized that Dwight can become and qualified suitable. Once this is accomplished, for the child guardianship can be re- visited. The report recommendations adopted by state: may guardianship
[T]he be revisited showing by [Dwight] that he has taken significant to be steps reunified child], with namely [Dwight] [the has created a loving child], bond with that he has taken parenting [the classes and undergone reunification therapy, that he has undergone toler- ance training or some type anger control management ther- apy, that he has learned to manage ’s health [the child] ' care needs. conclusion, In the district court did not abuse its discretion that, time, when it ordered for the present Connie should be guardian. child’s The provisions of NRS 159.061 were prop- erly addressed. Accordingly, we affirm the judgment of district court. ECHEVERRIA, Appellant,
RICARDO VENTURA
v. THE
NEVADA,
Respondent.
STATE OF
38691
No.
February
Before
OPINION Court, Rose, J.: By the analysis whether a harmless-error we consider
In this appeal, and whether a plea the State’s breach of to applies court a different district reassignment to a breach requires such that a harmless-error We conclude sentencing. for and we vacate the required, and that does not apply sentencing for a new and remand this case of conviction judgment a different district hearing before
FACTS with a with lewdness charged Echeverria was Ricardo Ventura the State entered Echeverria and of fourteen. age child under agreement, of the plea Under the terms agreement. a plea into while the charge, the lewdness guilty to agreed plead Echeverria on the condi- sentencing at to recommend agreed probation State with the eligible cooperated probation that Echeverria was tion from directly jail. INS Echeverria charge, to the lewdness guilty entering
After a risk assess- prepared Dr. Davis sentencing. for was scheduled ment, or menace danger Echeverria was not concluding that health, morals, long as community, so or welfare safety, ar- hearing, the State At the sobriety. he maintained his that Echeverria sobriety meant Dr. Davis’ condition of that gued therefore, with the State concurred for eligible probation; was not a prison recommendation of and Probation’s the Division of Parole Dr. Davis’ re- argued that Echeverria’s counsel term. In response, that eligible probation, that Echeverria was certified port the plea a violation of the State’s recommendation Echeverría, Before sentencing the sentencing judge acknowl- that edged Dr. Davis’ report was favorable to Echeverría and that the State was bound plea agreement to recommend proba- However, tion. the sentencing judge reminded the parties that the actual sentencing decision belonged to the sentencing judge alone. The sentencing judge then expressed concern over Echeverria’s “long history alcohol abuse” and Echeverria’s written statement to the court denying “the commission of the offense.” Based on concerns, these the sentencing judge sentenced Echeverría to life in with the prison possibility of after ten parole years.
DISCUSSION Echeverría contends that the State violated the plea agreement when the prosecutor did not make an affirmative recommendation of probation. Although the sentencing judge did not explicitly make a finding that the State breached the plea agreement, we note statement, that the judge’s “I will assume for the of this purposes the State is bound to recommend probation in this case,” implies this finding. Notably, the State concedes that the *3 sentencing judge found that the State breached agree- the plea ment. Accordingly, Instead, we need not address this issue. we will first address the issue of whether reversal is required when the State breaches a plea agreement. argues State that reversal is not warranted here because the
sentencing judge did rely not on the State’s breach when he sen- essence, tenced Echeverría.1 In the State argues that the breach was harmless because Echeverría was not it. prejudiced by
The seminal United States Supreme Court decision regarding the government’s breach agreement of a plea is Santobello v. New York.2In that the prosecutor agreed to make no recommen However, dation as to the sentence.3 at sentencing the prosecutor recommended the maximum sentence.4 an Following objection by defense, the the sentencing judge stated that he was not at all in fluenced what by the prosecutor said and that the prosecutor’s rec ommendation made no difference to the vacating court.5 In the judgment of conviction due to the breach of the plea agreement, . the Supreme Court explained: sentencing judge] stated that the prosecutor’s recommen-
[The dation did not influence him and we have no reason to doubt sentencing judge 1 Wenote that the explicitly did not state that he was not in breach, fluenced the State’s appeal. as the State contends on 2 404U.S. 257
3 Id. at 258.
4 Id. at 259.
5 Id. Nevertheless, justice that the interests of -weconclude
that. in re- prosecution the duties of the recognition of appropriate guilty of negotiation pleas made in the of promises lation to remanding to the state courts best the case will be served for the relief the further appropriate for consideration [of the plea].6 or withdrawal of specific performance breach — Santobello, that State’s violation of a we have stated Since “ ”7 implicitly Our case law has reversal.’ agreement ‘requires plea in the event a breach of analysis plea of rejected harmless-error rejection explicit. and we make that agreement, now cases in which we concluded that the Additionally, each of the of plea agreement specific performance that State breached remedy, appellant’s we vacated the was the proper hold a remand to new and instructed the district on sentence reject different We State’s sentencing hearing judge.8 before a different judge appropriate only to a is argument Therefore, hold the State breaches in unusual cases. we that when be to a different agreement, the case must sen- plea resentencing. tencing judge
CONCLUSION agreement, State we conclude that Because the breached the must and this case be re- applicable, harmless-error Accordingly, resentencing manded for before different we Echeverria’s and instruct that a new vacate n held judge.9 be before a different J., Sr. concurs. J., Agosti, C. dissenting: conviction and judgment
I dissent. would affirm
sen-
against Echeverría.
tence imposed
*4
6 Id.at 262-63.
7
State,
724,
89, 91,
(1991) (quoting
107
P.2d
Citti v.
Nev.
807
726
Van
State,
241, 243,
1215,
(1986));
P.2d
see
v.
102
720
1216
also
Buskirk
Nev.
Warden,
684,
244,
681,
(1983); Riley
669
246
v.
v.
99 Nev.
P.2d
Kluttz
Warden,
1269,
510, 513-14,
89 Nev.
515 P.2d
1271
Citti,
State,
8 See,
94,
727;
e.g.,
107
807 P.2d
v.
106
Nev. at
at
Nev.
Wolf
Buskirk,
244,
426, 428,
721,
(1990);
P.2d
Nev. at
720 P.2d
794
723
Van
102
Kluttz,
1217;
684,
246;
514,
Riley,
at
Nev. at
45 sentence, In vacating Echeverria’s the majority has two adopted rules are broader than what is decide required to this case. In the doing, majority so the which oversimplifies problems arise the a agreement. State’s breach of plea
First, the majority holds that breach of a every plea bargain re- quires any analysis reversal without as to whether the defendant has suffered prejudice. State’s breach of the plea bargain breach, however, struck in this case every was substantial. Not is substantial. As is sometimes the the State might inadvertently misstate the plea bargain might or the State’s breach be innocuous or minor. The presentence which also recites the ne- report, plea gotiations, sometimes inaccurately recounts the details of an might The State be guilty of substantial breach but the might only trial court deviate the true minimally from bar- plea close, gain, imposing against the defendant which is identical, though bargain. to the The State might violate but, here, the plea bargain as occurred the court might promptly notice the breach and immediately the State to require remedy violation. Under any of these circumstances I find it difficult to justify vacating remanding defendant’s sentence and for an en- tirely new sentencing hearing.
I an which first evaluates the prefer approach magnitude of breach and the prejudice, any, if suffered a defendant before de- termining the of a new necessity sentencing hearing. Utilizing this this case need not be remanded for a new approach, sentencing breach, since the trial court here noted the or- promptly dered of the specific performance plea bargain explicitly stated that the did sentencing breach not influence its decision. Second, the that whenever a majority plea bargain holds is detriment, breached to the defendant’s the case must be to a different I Once resentencing. disagree. again, holding is in excess of what be called for in Even might this case. if I that the sentence to be vacated and the re agreed ought case manded, every I do not believe such case requires reassignment remand. The upon reassignment of a case to a different court is not “ remedy,” the “usual and reassignment is reserved for ‘unusual ”1 circumstances.’ in United States v. Arnett.2 prefer approach employed There, that, the court decided evidence of personal absent bias on the factors to be considered in de- part judge, ciding necessary whether include:
“(1) reasonably whether the would be original judge expected remand have difficulty putting substantial out of his Arnett, 1162, (9th 1979) (quoting v. 1 United States 628 F.2d Cir. Robin, (2d 1977) (en banc)). United v. 553 F.2d Cir. States 2 628F.2d 1162. *5 findings mind views or deter- previously-expressed
or her evidence that must be re- mined to be erroneous or based on (2) reassignment preserve whether is advisable to jected, (3) whether would en- justice, reassignment of appearance any to in duplication proportion gain pre- tail waste and out of ’3 serving the of fairness.’ appearance Circuit in United by This was followed the Ninth weighing process States v. Travis4 under circumstances where the breach was more only than in this case because the failed grievous prosecution failure, mute, but when for its promised, challenged to stand as in the The were also applied breach. mentioned factors persisted the United States Court of for the District of Columbia Appeals Circuit in United States v. also considered the ques Wolff.5Wolff whether under Santobello v. reassignment required tion of was that Santobello agree New York.6 I with its conclusion binding is not on this issue. precedent In the factors to this I conclude that no reason ex- applying reassign Reassignment ists to the case to another would in- judge volve waste and because a unfamiliar with the duplication addition, entire In required case would be to review the record. al- lowing the who sentenced Echeverría judge originally to continue justice on with the case would not subvert the of since appearance clearly the record indicates that the influenced judge was not Finally, State’s breach. this is not a case where there was evidence that the trial originally presented judge must now out of his put judge mind. Nor did the trial views which would be diffi- express cult to set aside at a new The did the de- sentencing. judge fendant more than called in the harshly plea bargain, but prerogative. judge was his a sentence which is imposed reasonably by the circumstances of this case. supported I I
Finally, strategic dissent because fear bargains. yet breaches of It is conceivable and ironic that the State might advantage abuse the automatic reversal to take of the reassignment. rule of automatic The State might use breach as strategy matter of it as lenient in the disqualify perceives hope having likely case to a forum less to follow Thus, the State agreement could breach order to enhance the chances that the later rejected by sentencing judge. different above, all
Based
dissent.
respectfully
Robin,
10).
(quoting
3 Id.at 1165
5 127F.3d 87-88 Cir.
6 404U.S. 257