Echeverria v. State

62 P.3d 743, 119 Nev. 41, 119 Nev. Adv. Rep. 3, 2003 Nev. LEXIS 5

• Court: Nevada Supreme Court
• Decided: February 12, 2003
• Docket: 38691
• Status: Published

Opinions

OPINION

By the Court,

Rose, J.:

In this appeal, we consider whether a harmless-error analysis applies to the State’s breach of a plea agreement and whether such a breach requires reassignment to a different district court judge for sentencing. We conclude that a harmless-error analysis does not apply and that reassignment is required, and we vacate the judgment of conviction and remand this case for a new sentencing hearing before a different district court judge.

FACTS

Ricardo Ventura Echeverria was charged with lewdness with a child under the age of fourteen. Echeverria and the State entered into a plea agreement. Under the terms of the plea agreement, Echeverria agreed to plead guilty to the lewdness charge, while the State agreed to recommend probation at sentencing on the condition that Echeverria was probation eligible and cooperated with the INS directly from jail.

After entering a guilty plea to the lewdness charge, Echeverria was scheduled for sentencing. Dr. Davis prepared a risk assessment, concluding that Echeverria was not a danger or menace to the safety, health, morals, or welfare of the community, so long as he maintained his sobriety. At the sentencing hearing, the State argued that Dr. Davis’ condition of sobriety meant that Echeverria was not eligible for probation; therefore, the State concurred with the Division of Parole and Probation’s recommendation of a prison term. In response, Echeverria’s counsel argued that Dr. Davis’ report certified that Echeverria was eligible for probation, and that the State’s recommendation was a violation of the plea agreement.

Before sentencing Echeverría, the sentencing judge acknowledged that Dr. Davis’ report was favorable to Echeverría and that the State was bound by the plea agreement to recommend probation. However, 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 of alcohol abuse” and Echeverria’s written statement to the court denying “the commission of the offense.” Based on these concerns, the sentencing judge sentenced Echeverría to life in prison with the possibility of parole after ten 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 that the judge’s statement, “I will assume for the purposes of this hearing that the State is bound to recommend probation in this case,” implies this finding. Notably, the State concedes that the sentencing judge found that the State breached the plea agreement. Accordingly, we need not address this issue. Instead, we will first address the issue of whether reversal is required when the State breaches a plea agreement.

The State argues that reversal is not warranted here because the sentencing judge did not rely on the State’s breach when he sentenced Echeverría.¹ In essence, the State argues that the breach was harmless because Echeverría was not prejudiced by it.

The seminal United States Supreme Court decision regarding the government’s breach of a plea agreement is Santobello v. New York.2 In that case, the prosecutor agreed to make no recommendation as to the sentence.³ However, at sentencing the prosecutor recommended the maximum sentence.⁴ Following an objection by the defense, the sentencing judge stated that he was not at all influenced by what the prosecutor said and that the prosecutor’s recommendation made no difference to the court.⁵ In vacating the judgment of conviction due to the breach of the plea agreement, . the Supreme Court explained:

[The sentencing judge] stated that the prosecutor’s recommendation did not influence him and we have no reason to doubt that. Nevertheless, -we conclude that the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case to the state courts for further consideration [of the appropriate relief for the breach — specific performance or withdrawal of the plea].⁶

Since Santobello, we have stated that the State’s violation of a plea agreement “ ‘requires reversal.’ ”⁷ Our case law has implicitly rejected harmless-error analysis in the event of a breach of a plea agreement, and we now make that rejection explicit.

Additionally, in each of the cases in which we concluded that the State breached the plea agreement and that specific performance of the agreement was the proper remedy, we vacated the appellant’s sentence and instructed the district court on remand to hold a new sentencing hearing before a different judge.⁸ We reject the State’s argument that reassignment to a different judge is appropriate only in unusual cases. Therefore, we hold that when the State breaches a plea agreement, the case must be reassigned to a different sentencing judge for resentencing.

CONCLUSION

Because the State breached the plea agreement, we conclude that harmless-error analysis is not applicable, and this case must be remanded for resentencing before a different judge. Accordingly, we vacate Echeverria’s sentence and instruct that a new sentencing hearing be held before a different judge.⁹ ■

Young, Sr. J., concurs.

1 We note that the sentencing judge did not explicitly state that he was not influenced by the State’s breach, as the State contends on appeal.

2 404 U.S. 257 (1971).

3 Id. at 258.

4 Id. at 259.

5 Id.

6 Id. at 262-63.

7 Citti v. State, 107 Nev. 89, 91, 807 P.2d 724, 726 (1991) (quoting Van Buskirk v. State, 102 Nev. 241, 243, 720 P.2d 1215, 1216 (1986)); see also Kluttz v. Warden, 99 Nev. 681, 684, 669 P.2d 244, 246 (1983); Riley v. Warden, 89 Nev. 510, 513-14, 515 P.2d 1269, 1271 (1973).

8 See, e.g., Citti, 107 Nev. at 94, 807 P.2d at 727; Wolf v. State, 106 Nev. 426, 428, 794 P.2d 721, 723 (1990); Van Buskirk, 102 Nev. at 244, 720 P.2d at 1217; Kluttz, 99 Nev. at 684, 669 P.2d at 246; Riley, 89 Nev. at 514, 515 P.2d at 1271.

9 The Honorable Cuff Young, Senior Justice, having participated in the oral argument and deliberations of this matter as a Justice of the Nevada Supreme Court, was assigned to participate in the determination of this appeal following his retirement. Nev. Const, art. 6, § 19; SCR 10.