Stahl v. State

920 P.2d 1006, 112 Nev. 857, 1996 Nev. LEXIS 116
CourtNevada Supreme Court
DecidedJuly 22, 1996
DocketNo. 24338
StatusPublished

This text of 920 P.2d 1006 (Stahl 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.

Bluebook
Stahl v. State, 920 P.2d 1006, 112 Nev. 857, 1996 Nev. LEXIS 116 (Neb. 1996).

Opinions

OPINION

By the Court,

Shearing, J.:

This is an appeal from an order of the district court denying a motion to amend a judgment of conviction, enforce a sentencing agreement, or permit appellant to withdraw a guilty plea. This is also an appeal from an order of the district court denying appellant’s petition for post-conviction relief.1

[859]*859On June 20, 1990, the state filed an information charging appellant Mark Stahl with one count of grand larceny and one count of possession of stolen property. Pursuant to plea negotiations with the state, appellant entered a plea of guilty to the charge of possession of stolen property; the state agreed to dismiss the grand larceny charge and to argue at sentencing that appellant should serve no more than five years in prison.

At sentencing, the district court continued the matter for three months until appellant had an opportunity to complete a drug treatment program. The district court told appellant that if he successfully completed the treatment program, the court would sentence him to serve “a maximum of three years in the Nevada State Prison.” The district court warned, however, that if appellant did not complete the treatment program, he would be sentenced to the maximum ten-year term.

At the subsequent sentencing hearing, appellant’s counsel presented evidence that appellant had successfully completed a fourteen-day, in-patient drug treatment program and had enrolled in another ninety-day treatment program. Appellant’s counsel also requested the district court to consider granting appellant probation, rather than the previously agreed upon three-year term of incarceration.

Counsel argued:

When I first read about the sentencing this court imposed, that being that you would defer it for treatment and then he would come back to three years, that is what Mr. Stahl and I discussed and I said you know, Mark, this is, the Court has really sentenced you. And he said, well, I want to try for probation. And I said let’s do it. Let’s try. And quite frankly, I didn’t do a thing. I didn’t guide him. I did nothing. ... In fact, you know, I have had numerous conversations with him both in my office and on the phone. ... It is easy for him to do the time. He is familiar with that .... And I think that he has a desire. It is sincere. He knows that supervision is not easy .... And I think he realizes that probation is not easy and that it is a tougher row to hoe. But we are asking you to think about that for Mr. Stahl.

(Emphasis added.)

The deputy district attorney indicated in response that although the State would have no objection to the court granting appellant “the privilege of probation, the State would request that it be an extremely tight probation with an underlying sentence of five years . . . .”

In view of appellant’s apparent success in treatment, the district court granted appellant’s request for probation. Although the [860]*860district court sentenced appellant to serve an underlying term of ten years in the Nevada State Prison, the court suspended that sentence, and placed appellant on probation for a period of five years. The district court further ordered appellant to complete the ninety-day drug treatment program and to pay restitution in the amount of $7,500.00.

The Department of Parole and Probation subsequently moved the district court to revoke appellant’s probation after appellant was arrested for being under the influence of a controlled substance, driving under the influence, and hit and run. On February 13, 1992, the district court entered an order formally revoking appellant’s probation, and appellant began serving the underlying ten-year prison sentence.

On March 23, 1992, appellant filed in the district court a proper person petition for post-conviction relief. On May 27, 1992, counsel who had been appointed to represent appellant in an appeal from the order revoking appellant’s probation,2 filed in the district court a motion to amend the judgment or, in the alternative, to enforce the sentencing agreement or, in the alternative, to withdraw the guilty plea. The motion requested the court “to correct the clerical error in the judgment of conviction entered on November 21, 1990, to reflect a three (3) year sentence.” Appellant suggested that, although the district judge had originally intended to impose a three-year maximum sentence, the judge forgot about the three-year sentence, and instead, imposed a ten-year term. Alternatively, the motion requested that, if the district court had fully intended to impose a ten-year sentence, then the court should nonetheless correct the judgment to reflect the lesser three-year term that the court initially indicated would be imposed or permit appellant to withdraw his plea.

On June 30, 1992, the district court conducted a hearing at which appellant testified regarding his understanding of the sentencing proceedings. On July 29, 1992, the district court entered an order denying appellant’s motion. Appellant filed a timely notice of appeal from that order.

Thereafter, appellant filed in the district court an amended proper person petition for post-conviction relief. Appellant also requested the district court to appoint new counsel to represent him in that matter. On January 12, 1993, the district court entered an order directing attorney Bruce Voorhees to examine the file, to interview appellant, and to render “an honest opinion” to the court, as an officer of the court, as to whether there [861]*861was any "material substance" to appellant's petition.3 Subsequently, after attorney Voorhees filed his "opinion," and without conducting an evidentiary hearing, the district court entered an order denying appellant's petition. Appellant filed a timely notice of appeal from that order as well. On May 5, 1993, the district court appointed new and different counsel to represent appellant in this appeal.

Appellant first contends that the district court erred in denying his petition for post-conviction relief without an evidentiary hearing. Appellant argues that his claim of ineffective assistance of counsel at sentencing, based on his counsel's failure to challenge the ten-year sentence pronounced by the district court, was sufficient to entitle him to an evidentiary hearing. We disagree.

Petitioners for post-conviction relief are not entitled to eviden-tiary hearings on allegations belied or repelled by the record. In this case, the record reveals that, at the continued sentencing hearing of November 21, 1990, appellant's counsel effectively argued that instead of serving a term of three years in the Nevada State Prison-the term that the district court had initially agreed to impose-appellant wanted to "try for probation." Thus, the record reveals that, after consulting with appellant "numerous" times, and at appellant's direction, counsel sought and obtained probation rather than prison time. The allegation that counsel was ineffective for thereafter failing to challenge the district court's decision to grant appellant probation is directly repelled by the record. Appellant was not entitled to an evidentiary hearing on this or any other claim for relief raised in his petition. See Hargrove v. State, 100 Nev. 498, 686 P.2d 222 (1984).

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Cite This Page — Counsel Stack

Bluebook (online)
920 P.2d 1006, 112 Nev. 857, 1996 Nev. LEXIS 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stahl-v-state-nev-1996.