AB 184 — Revises provisions concerning the withdrawal of certain pleas. (BDR 3-286)

A.B.Assembly Bill No.

184184–Assemblyman AOhrenschall SSEMBLYCHAPTER.......... B ILLN O.

184–ASSEMBLYMAN OHRENSCHALL PREFILED F EBRUARY 13, 2017 ____________ Referred to Committee on Judiciary SUMMARY—Revises provisions concerning the withdrawal of certain pleas.

(BDR 3-286) FISCAL NOTE:

Effect on Local Government:

No.

Effect on the State:

No.

~ EXPLANATION – Matter in bolded italics is new;

matter between brackets [omitted material] is material to be omitted.

Existing law authorizes a person convicted of a crime and under sentence of death or imprisonment to file a postconviction petition for a writ of habeas corpus to challenge the conviction or sentence as having been obtained or imposed in violation of state law or a constitutional right.

Existing law provides that, with the exception of a direct appeal or a remedy which is incident to the proceedings in the trial court, the petition for a writ of habeas corpus replaces all other common law, statutory or other remedies which have been available for challenging the validityw,validity of the conviction or sentence and must be used exclusively in place of them.

(NRS 34.724) Existing law also authorizes a criminal defendant to withdraw a plea of guilty, guilty but mentally ill or nolo contendere at any time before sentencing, and also permits the withdrawal of such a plea after sentencing, but only to correct a manifest injustice.

(NRS 176.165)176.165)ch a plea after sentencing, but only to correct a In 2000, the Nevada Supreme Court held that a postconviction motion to withdraw a guilty plea to correct a manifest injustice was a remedy incident to the proceedings in the trial court.

558 (2000)) The Nevada Supreme Court, however, recently reversed the holding of that case, instead holding that a postconviction petition for a writ of habeas corpus provides the exclusive remedy for a challenge to the validityvalidityor a of a guilty plea made after sentencing for persons in custody on the conviction beiThisbeing billchallenged. expressly provides that a motion to withdraw a plea of guilty, guilty but mentally ill or nolo contendere pursuant to NRS 176.165 that is made after - *AB184* – 2 – sentence is imposed or imposition of sentence is suspended is a remedy which is incident to the proceedings in the trial court under certain circumstances.

(Harris v.

State, 130 Nev.

Adv.

Op.

47, 329 P.3d 619 (2014)) This bill expressly provides that a motion to withdraw a plea of guilty, guilty but mentally ill or nolo contendere pursuant to NRS 176.165 that is made after sentence is imposed or imposition of sentence is suspended is a remedy which is incident to the proceedings in the trial court under certain circumstances.

EXPLANATION – Matter in bolded italics is new;

matter between brackets [omitted material] is material to be omitted.

Any person convicted of a crime and under sentence of death or imprisonment who claims that the conviction was obtained, or that the sentence was imposed, in violation of the Constitution of the United States or the Constitution or laws of this State, or who claims that the time the person has served pursuant to the judgment of conviction has been improperly computed, may, without paying a filing fee, file a postconviction petition for a writ - 79th Session (2017) – 2 – of habeas corpus to obtain relief from the conviction or sentence or to challenge the computation of time that the person has served.

(c) Is the only remedy available to an incarcerated person to challenge the computation of time that the person has servedservedn to pursuant to a judgment of conviction.

A motion filed more than 5 years after the date on which the person - *AB184* – 3 – was convicted creates a rebuttable presumption of prejudice to the State on the basis of laches.

This act applies to any motion to withdraw a plea of guilty, guilty but mentally ill or nolo contendere pursuant to NRS 176.165 that is made after sentence is imposed or imposition of sentence is suspended that is pending on or after June 12, 2014.

H~~~~~ 17 - *AB184*79th Session (2017)