dissenting:
Iverson has been sent to prison to be “punished” (NRS 205.025) for committing the crime of arson by burning his parents’ home; yet, everyone knows1 that Iverson was not guilty of “willful” (NRS 205.025) or criminal burning of his parents’ home.
After his arrest Iverson told police that the fire had been set by a certain robot that had taken charge of him — a robot that had been commanded to burn his parents’ home in order to protect them from some imaginary harm. Iverson, described in the record as being “profoundly mentally ill,” has been hospitalized for his mental disorders at least nine times, and is mentally retarded and schizophrenic. There is little or no possibility that either Iverson or the robot burned his parents’ home with any malicious or criminal intent.
After his arrest Iverson was placed on what is described in the record as a “very high dose of psychotropic medicine.” Iverson was drugged into a state of temporary and synthetic sanity, and was brought to court in that state so that he could plead guilty. At his plea hearing, Iverson had forgotten entirely about the robot and Satan and all that and at his plea hearing apparently believed that he had “left the heater on” and that “it must have, fumes or something, must have exploded on the heater.”
*102The court questioned Iverson’s attorney at the plea hearing. She advised the court that although there was a time when she had been “under the impression that he did not know, have a sense of what was happening,” at the time of the plea hearing (although she had only talked to him “momentarily”), she noticed a “significant dilference” in his condition, namely that “he appears to be more comfortable, he’s more lucid than he was previously.” Asked by the court if “he understands the process today,” Iver-son’s attorney answered, “I think he does.” The plea hearing then continued on.
Assuming that Iverson was truly “lucid” (something a reading of this record makes me doubt very much), no questions were asked by the court or Iverson’s counsel about why Iverson now thought that the fire was caused by a heater mishap rather than by a robot. The court advised Iverson:
Now, when you enter a plea of guilty to me, Mr. Iverson, you admit that on about the date in question you were involved in a fourth degree arson, [2] which is the burning of a, of a structure.
He was not asked about whether he “willfully and maliciously attempt[ed] to set fire” to his parents’ home. It is certainly not fourth degree arson merely to leave a heater on so that, as Iverson put it to the court, “fumes or something must have exploded on the heater.”
I know it was not raised by the attorney who represented Iverson at the hearing, but it should be obvious to anyone who reads the transcript of this hearing that the synthetically “lucid” Iverson who was pleading guilty in this case had no recollection of the robot that he had previously blamed for setting the mobile *103home afire.3 The lower court’s handling of Iverson’s plea in this manner clearly ran afoul of the United States Supreme Court’s holding in Henderson v. Morgan, 426 U.S. 637 (1976). In Henderson, a mentally retarded defendant pled guilty to second degree murder, but was not informed by the trial court that intent to cause death was an essential part of this crime. Id. at 646. In addition, defendant made no factual statement at the plea hearing that would imply that defendant had such intent. Id. The Court reversed this conviction, holding that because defendant did not receive “real notice of the true nature of the charge against him,” the plea was involuntary and the conviction was entered in violation of due process of law. Id. at 645; see also Dubose v. State, 100 Nev. 339, 340, 682 P.2d 195, 196 (1984); NRS 174.035(1).
These authorities clearly require reversal in this case. The trial court never explained to Iverson the mental elements of fourth degree arson: “willful and malicious.” In addition, Iverson made no factual statement at the plea hearing that would have implied that the burning was willful — in fact, the statements made by Iverson at this hearing seem to indicate that the burning was accidental. Thus, Iverson never received “real notice of the true nature of the charge against him,” and his conviction was in violation of due process.
Whether the fire in question was the result of the accident described by Iverson at the time he pleaded guilty to fourth degree arson, or the result of the diabolical intervention of a robot, it is obvious that the record in this case does not support a felony arson conviction nor five years’ punishment in prison. I would set aside the arson conviction and return this case to the district court for a civil rather than a criminal disposition of this profoundly mentally ill man. This conviction cannot stand.
The trial judge was obviously painfully aware of the injustice in this case. He asked the rhetorical question: “What do we do with people who have significant mental illnesses who need their freedom restricted, but ... we don’t have any facilities for it[?].” The judge’s answer to his own question was this:
The only alternative I can see is some kind of residential program followed by some kind of a handle to make sure that Mr. Iverson does what is in his best interests, that he maintains his medications, that he maintains things so if, so if he’s beginning to slip a little bit, we can pick him up, hold him under my order until we can get him evaluated again. That’s what I want to do.
This is what the judge wanted to do but not what he did. Under the circumstances he believed that “[t]he only choice I have in Nevada, unfortunately, is incarceration to prevent that danger, and it is a terrible choice.”
NRS 205.025 provides as follows:
205.025 Fourth degree.
1. Any person who willfully and maliciously attempts to set fire to or attempts to burn or to aid, counsel or procure the burning of any of the buildings or property mentioned in NRS 205.010, 205.015, and 205.020, or who commits any act preliminary thereto or in furtherance thereof, shall be guilty of arson in the fourth degree and be sentenced to imprisonment for not less than 1 year nor more than one-half of the longest term prescribed upon a conviction for the commission of the offense attempted, and may be further punished by a fine of not more than $5,000.
2. In any prosecution under this section the placing or distributing of any inflammable, explosive or combustible material or substance, or any device in any building or property mentioned in NRS 205.010, 205.015, and 205.020, in an arrangement or preparation eventually to set fire to or burn such building or property, or to procure the setting fire to or burning of such building or property, shall be prima facie evidence of a willful attempt to burn or set on fire such property.
Where issues of constitutional dimension are presented, this court has often stated that, as long as an adequate record for review exists, these issues may be addressed on their merits. See, e.g., Koenig v. State, 99 Nev. 780, 787 n.5, 672 P.2d 37, 42 n.5 (1983).