50 P.3d 1092 | Nev. | 2002
OPINION
In separate proceedings below, appellants filed proper person post-conviction petitions for writs of habeas corpus alleging, in part, that the attorneys that represented them in the proceedings leading to their convictions had provided ineffective assistance of counsel.
Gebers v. State, Docket No. 34836
On July 15, 1998, the district court convicted appellant Patricia Gebers, pursuant to a guilty plea, of grand larceny. The district court sentenced Gebers to serve forty-eight to one hundred twenty months in the Nevada State Prison, to be served consecutively to two terms of imprisonment imposed in two other district court cases. Gebers did not file a direct appeal.
On June 7, 1999, Gebers filed a proper person post-conviction petition for a writ of habeas corpus in the district court. In the petition, Gebers claimed that her former counsel rendered ineffective assistance and that her guilty plea was invalid. The State opposed the petition. Pursuant to NRS 34.750, the district court declined to appoint counsel to represent Gebers. On August 6, 1999, the district court determined that a hearing should be conducted wherein appellant’s former counsel, Paul Wommer, could testify regarding what he did and did not tell Gebers prior to the entry of Gebers’ plea of guilty.
On August 31, 1999, the district court conducted the hearing. Gebers was not present. Nonetheless, the district court questioned attorney Wommer, who represented Gebers in the proceedings leading to her conviction, regarding the merits of the claims raised in the petition. On September 13, 1999, after hearing and considering the evidence and testimony from Gebers’ former counsel, the district court denied the petition. This appeal followed.
Kiper v. State, Docket No. 35950
On January 21, 1999, the district court convicted appellant Russell Kiper, pursuant to a guilty plea, of driving while under the influence of alcohol. The district court sentenced Kiper to serve a term of ninety-six to two hundred forty months in the Nevada State Prison. This court dismissed Kiper’s untimely appeal from his judgment of conviction and sentence.
On December 30, 1999, Kiper filed a proper person post-conviction petition for a writ of habeas corpus in the district court. In the petition, Kiper claimed, among other things, that he
PROCEDURAL POSTURE
Our preliminary review of the record in these matters revealed that the district court may have violated appellants’ rights by conducting evidentiary hearings on the claims raised in their petitions without first securing appellants’ presence at the hearings. Thus, on March 26, 2002, this court ordered the State to show cause why these appeals should not be remanded to the district court for further proceedings. The State filed its response on April 29, 2002. Additionally, at this court’s request, the Nevada Attorneys for Criminal Justice (NACJ) has filed an amicus brief discussing whether appellants’ statutory or constitutional rights were violated in the proceedings below. Accordingly, these appeals are now fully at issue and ready for decision.
DISCUSSION
NRS 34.770(1) provides that, in post-conviction habeas corpus proceedings, the judge “shall determine whether an evidentiary hearing is required.” Under NRS 34.770(3), “[i]f the judge . . . determines that an evidentiary hearing is required, he shall grant the writ and shall set a date for the hearing.” Such a writ “does not entitle a petitioner to be discharged from the custody or restraint under which he is held . . . [but] requires only the production of the petitioner to determine the legality of his custody or restraint.”
In Gebers’ case, the district court conducted an evidentiary hearing on the merits of the claims Gebers raised in her petition. Gebers was not present or represented by post-conviction counsel at the hearing. During the hearing, testimony and evidence was presented reflating Gebers’ claims.
The State nonetheless contends that Gebers was not entitled to an evidentiary hearing because the claims she raised in her petition were belied by the record. The State further contends that because Gebers was not entitled to an evidentiary hearing, it was harmless error for the district court to conduct a hearing on the merits of the claims Gebers raised in her petition outside her presence. We disagree.
It is clear from the record that the district court determined that an evidentiary hearing was warranted wherein Gebers’ former counsel would be questioned and would testify regarding the claims asserted in Gebers’ petition. Once the district court decided to conduct that evidentiary hearing, it was required by statute to grant the writ, to order Gebers to be produced for the hearing, and to permit her an opportunity to deny, controvert, or present evidence to demonstrate that her imprisonment was unlawful.
The State concedes that Kiper was entitled to an evidentiary hearing because his claim that his counsel failed to file a direct appeal after Kiper requested him to do so was not belied by the record. The State also concedes that the district court violated Kiper’s statutory rights by conducting the required evidentiary hearing and by receiving testimony from Kiper’s former counsel regarding the claims asserted in Kiper’s petition without securing Kiper’s presence at the hearing. Nonetheless, the State contends that Kiper was not prejudiced by any violation of his statutory rights because the direct appeal claims that Kiper might have subsequently litigated below were presented to and properly denied by the district court. We disagree.
In Lozada v. State,
In its amicus brief, the NACJ contends that the district court’s failure to provide for appellants’ presence at the evidentiary proceedings below violated appellants’ constitutional rights. We
CONCLUSION
We conclude that the district court violated appellants’ statutory rights when it conducted ex parte hearings on the merits of the claims appellants raised in their petitions. Therefore, we reverse the district court’s orders denying appellants’ petitions and remand these matters to a different district court judge for evi-dentiary hearings on the merits of the claims appellants raised in their petitions. The district court shall provide for appellants’ presence at the hearings.
We elect to consolidate these appeals for disposition. See NRAP 3(b).
During the proceedings conducted on August 6, 1999, counsel for the State inquired if the hearing with Mr. Wommer would be an “evidentiary hearing.” The district court replied, “In the sense that I would want Mr. Wommer to indicate what his recollections are.” Because the district court subsequently heard testimony from Mr. Wommer on August 31, 1999, directly addressing the claims presented in Gebers’ petition, it is clear that the hearing conducted on August 31, 1999, is properly characterized as an ‘ ‘ evidentiary hearing.”
Kiper v. State, Docket No. 34020 (Order Dismissing Appeal, May 3, 1999).
NRS 34.390(2).
NRS 34.400; see also NRS 34.440 (upon service of the writ, the person to whom the writ is directed shall bring the body of the party in custody according to the command of the writ).
NRS 34.470(1).
See NRS 34.770(3); NRS 34.390; NRS 34.400; NRS 34.470.
110 Nev. 349, 871 P.2d 944 (1994).
See id. at 359, 871 P.2d at 950.
See id.
See, e.g., Hollis v. State, 96 Nev. 207, 210, 606 P.2d 534, 536 (1980) (where a jury instruction violated a statute, it was unnecessary to decide the constitutional claim because of the rule that “[t]his court will not consider constitutional issues which are not necessary to the determination of an appeal”); State of Nevada v. Plunkett, 62 Nev. 265, 270-71, 149 P.2d 101, 104 (1944) (“[A] constitutional question will not be determined unless clearly involved, and a decision thereon is necessary to a determination of the case.”).
The district court may of course exercise its discretion to appoint post-conviction counsel. See NRS 34.750.