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Gayler (Brandyn) v. State

Court: Nevada Supreme Court
Date filed: 2014-07-22
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                that the plea was not entered knowingly and intelligently.        Bryant v.
                State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986); see also Hubbard v.
                State, 110 Nev. 671, 675, 877 P.2d 519, 521 (1994). In determining the
                validity of a guilty plea, this court looks to the totality of the
                circumstances.   State v. Freese, 116 Nev. 1097, 1105, 13 P.3d 442, 448
                (2000); Bryant, 102 Nev. at 271, 721 P.2d at 367.
                            Appellant claimed that his plea was not knowingly or
                voluntarily entered because the district court failed to adequately canvass
                him about the factual basis of the plea, he did not understand the charges
                against him, and he did not commit the offense of attempted sexual
                assault. We conclude that appellant failed to demonstrate that his plea
                was invalid. During the plea canvass, appellant affirmed that he
                understood that he was being charged with attempted sexual assault, he
                had read and understood the plea agreement, and he had no questions
                about it. The district court read the charge of attempted sexual assault to
                appellant and appellant affirmed that he was pleading guilty because he
                was actually guilty. Thus, the record belies his claim that he did not
                knowingly and voluntarily enter in the plea agreement. See Hargrove v.
                State, 100 Nev. 498, 502, 686 P.2d 222, 225 (1984). Furthermore,
                appellant received substantial benefits by pleading guilty. In exchange for
                his guilty plea to one count of attempted sexual assault, the State
                dismissed four counts of sexual assault as well as three other felony
                counts, did not oppose probation, and agreed to allow appellant to
                withdraw his plea upon successful completion of probation and enter a
                guilty plea for the non-sex offense of felony coercion. Therefore, the
                totality of the circumstances demonstrates that appellant's plea was valid,
                and the district court did not err in denying this claim.

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                             Next, appellant claimed that the district court relied on false
                 assumptions at sentencing and that his sentence was excessive and
                 disproportionate to the offense. These claims were not permissible in a
                 post-conviction petition for a writ of habeas corpus that challenges a
                 judgment based upon a guilty plea. See NRS 34.810(1)(a). Therefore, the
                 district court did not err in denying these claims.
                             Finally, appellant also claimed that his due process rights
                 were violated during the probation revocation proceedings. Specifically,
                 he claimed that the State did not present sufficient evidence of the
                 probation violations at the hearing and thus the revocation was not based
                 on verified facts, the alleged violations did not warrant revocation, and the
                 district court revoked his probation based on improper information and
                 biased assumptions. Appellant failed to demonstrate that he was entitled
                 to relief. Appellant stipulated at the hearing to the following probation
                 violations: using marijuana, being behind in restitution payments, having
                 impermissible contact with a probationer, and being arrested for
                 obstructing a police officer. In light of his stipulation, he failed to
                 demonstrate that there was insufficient evidence to justify the probation
                 revocation or that the district court abused its discretion in revoking
                 probation. See Lewis v. State, 90 Nev. 436, 438, 529 P.2d 796, 797 (1974)
                 ("The evidence and facts must reasonably satisfy the judge that the
                 conduct of the probationer has not been as good as required by the
                 conditions of probation."); see also MeNallen v. State, 91 Nev. 592, 540
                 P.2d 121 (1975) (affirming revocation of probation where probationer did




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                    not refute violation). Therefore, we conclude that the district court did not
                    err in denying these claims. Accordingly, we
                                ORDER the judgment of the district court AFFIRMED. 3




                                                                                        J.
                                                        Pickering


                                                           ciackat•StCy'rs'," J.
                                                         "un



                                                        Parraguirre


                                                                                        J.
                                                        Saitta


                    cc: Hon. Jerome T. Tao, District Judge
                         Brandyn William Gayler
                         Attorney General/Carson City
                         Clark County District Attorney
                         Eighth District Court Clerk




                          3We   deny appellant's proper person motions to stay all pending
                    appeals, to join cases on appeal, and to clarify.



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