Roberts v. State

GIBBONS, C.J.

UNPUBLISHED OPINION

ORDER OF AFFIRMANCE

GIBBONS, C.J.

Anthony Shane Roberts appeals from a judgment of conviction entered pursuant to an Alford plea of attempted lewdness with a child under the age of 14. Eighth Judicial District Court, Clark County; Carolyn Ellsworth, Judge.

First, Roberts argues the district court erred by denying his motion to withdraw his Alford plea because it did not review the totality of the circumstances in this matter. In his motion, Roberts asserted he entered his plea because he was intimidated by counsel and because he did not understand there would be restrictions concerning his parenting time with his minor child following entry of his plea.

A defendant may move to withdraw a plea before sentencing, NRS 176.165, and "a district court may grant a defendant's motion to withdraw his guilty plea before sentencing for any reason where permitting withdrawal would be fair and just," Stevenson v. State, 131 Nev. 598, 604, 354 P, 3d 1277, 1281 (2015). In considering the motion, "the district court must consider the totality of the circumstances to determine whether permitting withdrawal of a guilty plea before sentencing would be fair and just." Id. at 603, 354 P.3d at 1281. The district court's ruling on a presentence motion to withdraw a plea "is discretionary and will not be reversed unless there has been a clear abuse of that discretion." State v. Second Judicial Dist. Court (Bernardelli), 85 Nev. 381, 385, 455 P.2d 923, 926 (1969).

The district court conducted an evidentiary hearing concerning

I Roberts' motion. Counsel testified that he discussed the plea offer with Roberts but he did not pressure Roberts to accept it. Counsel also testified that he explained to Roberts that Roberts' ability to have contact with minor children would be limited following entry of the plea given the nature of the offense.

Following the evidentiary hearing, the district court concluded that counsel testified credibly concerning these issues. The district court also noted Roberts admitted that he lied during prior court proceedings and found Roberts' testimony concerning the circumstances surrounding entry of his plea was not credible. The district court noted its responsibility to review the claims based on the totality of the circumstances to ascertain whether Roberts demonstrated a fair and just reason to permit withdrawal of his plea and concluded Roberts was not entitled to relief. After review of the record, we conclude Roberts has not demonstrated the district court abused its discretion by denying his motion to withdraw his guilty plea.

Next, Roberts argues the district court erred by failing to include specific findings of fact in its order denying his motion to withdraw his plea. However, we conclude the district court's order denying the motion contains findings with sufficient specificity to permit this court to appropriately review its decision on appeal. Therefore, we conclude Roberts fails to demonstrate he is entitled to relief based upon this claim.

Finally, Roberts appears to argue on appeal that withdrawal of his plea was warranted because the district court failed to inform him prior to entry of his plea that he may lose physical custody of his son as a result of his conviction. However, Roberts did not raise this claim in his motion to withdraw guilty plea, and we decline to consider it on appeal in the first instance. See Smith u. State, 110 Nev. 1009, 1010-11 n.l, 879 P.2d 60, 61 n.l (1994) (stating that unless error clearly appears from the record, a challenge to the validity of a guilty plea must first be raised in the district court in a motion to withdraw guilty plea or a postconviction petition for a writ of habeas corpus). Accordingly, we

ORDER the judgment of conviction AFFIRMED.

Tao, J., Bulla, J.