Hargrove v. StateHargrove v. State
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- Per Curiam
Thomas Randall Hargrove appeals from an order of the district court denying his post-conviction motion to withdraw his plea
On February 1, 1982, appellant entered a plea of guilty to one count of making a bomb threat,
On June 8, 1982, about four months after entry of the judgment of conviction, appellant filed a motion to withdraw his plea pursuant to
The district court denied the motion on its merits but without an evidentiary hearing, ruling that appellant’s challenges to his plea presеnted no potential basis for relief and did not demonstrate a “manifest injustice.” The court entered a written order denying the motion to withdraw, and this appeal ensued.
We must first decide whether an order denying a post-conviction motion to withdraw a guilty plea is an appealable order. Except in certain special proceedings, appeals in criminal cases are governed by NRS‘177.015, which provides,
inter alia,
that the state or the defendant may appeal from orders “granting a motion to dismiss, a motion for acquittal or a motion in arrest of judgment, or granting or refusing a new trial.”
Both a motion for a new trial and a motion to withdraw a guilty plea may be made after conviction.
See
A defеndant whose guilt is predicated upon a verdict may raise a post-conviction challenge to the verdict’s validity by
We now turn to the merits of this appeal. In his motion to withdraw and his supplemental points and authorities, appellant advanced numerous allegations in support of his claim that his plea should be set aside to correct a “manifest injustice.” Hargrove contended, inter alia, that he pleaded without the effective advice and assistance of counsel, that his рlea was the product of his “fear” of an habitual criminal sentence, and that Hargrove was in fact innocent of the bomb threat charge and could so establish by “newly-discovered evidence.” The district court found that appellant’s allegations were not sufficient to entitle him to an evidentiary hearing on his motion, and that appellant had not raised a mеritorious challenge to his plea. Appellant now argues that it was error to deny the motion without an evidentiary hearing, and that his motion sufficiently demonstrated a “manifest injustice.” We disagree.
Appellant’s motion consisted primarily of “bare” or “naked” claims for relief, unsupported by any specific factual allegations that would, if true, have entitled him to withdrawаl of his plea. Specifically, appellant’s claim that certain witnesses could establish his innocence of the bomb threat charge was not accompanied by the witnеss’ names or descriptions of their intended testimony. As such, to the extent that it advanced merely “naked” allegations, the motion did not entitle appellant to an evidentiary hearing. See Vaillancourt v. Warden, 90 Nev. 431, 529 P.2d 204 (1974); Fine v. Warden, 90 Nev. 166, 521 P.2d 374 (1974); see also Wright v. State, 619 P.2d 155, 158 (Kan.Ct.App. 1980) (to entitle defendant to an evidentiary hearing, a post-conviction petition must set forth “a factual background, names of witnesses or other sources of evidencе demonstrating . . . entitlement to relief”). To the extent that the motion and supplemental authorities raised allegations supported by factual claims, particularly the allegatiоn of ineffective counsel, we note that the factual claims were belied by the record, especially the transcript of the change of plea canvass. A defendаnt seeking post-conviction relief is not entitled to an evidentiary hearing on factual allegations belied or repelled by the record. See Grondin v. State, 97 Nev. 454, 634 P.2d 456 (1981).
We conclude that the district court correctly denied the motion without an evidentiary hearing. We also note that the motion to withdraw was without merit in any event. In particular, appellant’s claim that he pleaded out of “fear” of an aggravated sentence as an habitual criminal is meritless. The record in this case shows a knowing and voluntary plea. Furthermore, “a defendant’s desire to pleаd guilty to an original charge in order to avoid the threat of the habitual criminal statute will not
Appellant’s contention that his plea should have been withdrawn because he is actuаlly innocent of the charge is also without merit. The question of an accused’s guilt or innocence is generally not at issue in a motion to withdraw a guilty plea. See Kercheval v. United States, 274 U.S. 220, 224 (1927); State v. District Court, 85 Nev. 381, 455 P.2d 923 (1969). Even if the question were at issue in this case, appellant’s argument is nevertheless without merit. The record of the plea canvass shows that appellant essentially entered a guilty plea under the conсept espoused in North Carolina v. Alford, 400 U.S. 25 (1970); appellant asserted his innocence of the bomb threat charge, but pleaded guilty to avoid punishment on the more serious charge of transportation of explosives and as an habitual criminal. As such, his claim of innocence is essentially academic.
We have examined the remaining arguments raised in the рetition and have determined that they are without merit. The district court correctly denied the motion to withdraw. Accordingly, the order denying the appellant’s post-conviction motion to withdraw his guilty plea is affirmed.
Notes
Cause appearing, we hereby submit this appeal on the briefs and record. NRAP 34(f)(1).
[A] motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdwaw his plea. (Emphasis added.)
If a defendant challenges a guilty plea before entry of the judgment, an order denying withdrawal would be reviewable on direct appeal from the judgment as an intermediate order in the proceedings.
See