McCullough v. State

Nevada Supreme Court

McCullough v. State

574 P.2d 585, 94 Nev. 51, 1978 Nev. LEXIS 472

CourtNevada Supreme Court

DecidedJanuary 30, 1978

DocketNo. 9728

StatusPublished

Cited by5 cases

This text of 574 P.2d 585 (McCullough v. State) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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McCullough v. State, 574 P.2d 585, 94 Nev. 51, 1978 Nev. LEXIS 472 (Neb. 1978).

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Opinion

OPINION

Per Curiam:

Upon his plea of guilty to the crime of attempted burglary, the appellant was sentenced to serve a term of four years in prison. He now complains that the court should have inquired into his competency to enter a guilty plea since he had only an eighth grade education; that he had been promised probation by someone; and, in any event, the sentence imposed is too severe.

His contentions are before us because of Anders v. California, 386 U.S. 738 (1967), and Sanchez v. State, 85 Nev. 95, 450 P.2d 793 (1969), and counsel for appellant has filed with us his affidavit of “no merit appeal.” Our independent review of the record reveals that this appeal is frivolous.

Authority is not cited for the proposition that an accused with only an eighth grade education is to be presumed incompetent to knowingly and intelligently plead guilty, nor are we aware of any such authority. There was nothing presented to the district court to suggest incompetency.

Neither does the record hint a promise of probation. To the contrary, it is clear that the appellant knew that the matter of sentence rested exclusively with the court.

The sentence imposed was within statutory authorization, NRS 205.060, 208.070. Cf. Carter v. State, 84 Nev. 592, 446 P.2d 165 (1968). The fact that the sentence imposed by the [53]*53court exceeded the sentence recommended by the Department of Parole and Probation is of no consequence. Collins v. State, 88 Nev. 168, 494 P.2d 956 (1972). The victim of the attempted burglary was a 72-year-old woman whom the appellant admitted striking. She suffered injuries and was hospitalized. This alone may have persuaded the court to impose a more severe sentence than recommended by the department.

Affirmed.

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OPINION

Per Curiam:

Upon his plea of guilty to the crime of attempted burglary, the appellant was sentenced to serve a term of four years in prison. He now complains that the court should have inquired into his competency to enter a guilty plea since he had only an eighth grade education; that he had been promised probation by someone; and, in any event, the sentence imposed is too severe.

His contentions are before us because of Anders v. California, 386 U.S. 738 (1967), and Sanchez v. State, 85 Nev. 95, 450 P.2d 793 (1969), and counsel for appellant has filed with us his affidavit of “no merit appeal.” Our independent review of the record reveals that this appeal is frivolous.

Authority is not cited for the proposition that an accused with only an eighth grade education is to be presumed incompetent to knowingly and intelligently plead guilty, nor are we aware of any such authority. There was nothing presented to the district court to suggest incompetency.

Neither does the record hint a promise of probation. To the contrary, it is clear that the appellant knew that the matter of sentence rested exclusively with the court.

The sentence imposed was within statutory authorization, NRS 205.060, 208.070. Cf. Carter v. State, 84 Nev. 592, 446 P.2d 165 (1968). The fact that the sentence imposed by the [53]*53court exceeded the sentence recommended by the Department of Parole and Probation is of no consequence. Collins v. State, 88 Nev. 168, 494 P.2d 956 (1972). The victim of the attempted burglary was a 72-year-old woman whom the appellant admitted striking. She suffered injuries and was hospitalized. This alone may have persuaded the court to impose a more severe sentence than recommended by the department.

Affirmed.

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574 P.2d 585, 94 Nev. 51, 1978 Nev. LEXIS 472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccullough-v-state-nev-1978.

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