Armenta-Carpio v. State

129 Nev., Advance Opinion 54

IN THE SUPREME COURT OF THE STATE OF NEVADA

JAVIER ARMENTA-CARPIO, A/K/A No. 60371

JAVIER CARPIO ARMENTA,

Appellant,

vs.

THE STATE OF NEVADA,

FILED

Respondent. JUL 2 5 2013

Appeal from a judgment of conviction, pursuant to a jury

verdict, of five counts of lewdness with a child under the age of 14 years,

attempted lewdness with a child under the age of 14 years, and one count

of child abuse and neglect. Eighth Judicial District Court, Clark County;

Douglas W. Herndon, Judge.

Affirmed.

Benjamin C. Durham, Las Vegas,

for Appellant.

Catherine Cortez Masto, Attorney General, Carson City; Steven B.

Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District

Attorney, Clark County,

for Respondent.

BEFORE THE COURT EN BANC.

111,

••

OPINION

By the Court, PARRAGUIRRE, J.:

Appellant Javier Armenta-Carpio went to trial facing strong

evidence, including his own admissions, that he had sexual contact with a

child. Under the circumstances, defense counsel made a strategic decision

to concede that there had been some sexual contact between Armenta-

Carpio and the victim and to concentrate instead on the extent of the

contact and whether the State had charged Armenta-Carpio with more

offenses than the evidence could support. After this strategy became

apparent during defense counsel's opening statement, the trial court sua

sponte inquired whether defense counsel had discussed the strategy with

Armenta-Carpio and whether Armenta-Carpio had agreed to the strategy.

The court received affirmative responses to both questions.

On appeal, we are asked whether the district court's inquiry

about the concession strategy was sufficient given our decision in

Hernandez v. State, 124 Nev. 978, 194 P.3d 1235 (2008), that when faced

with a concession of guilt by defense counsel during trial, the district court

must canvass the defendant to determine whether he knowingly and

voluntarily consented to the concession of guilt. Although the district

court's inquiry here did not fully comply with Hernandez, we conclude that

the rationale underlying Hernandez is unsound and the opinion therefore

must be overruled. We now hold, consistent with Florida v. Nixon, 543

U.S. 175, 188 (2004), that a concession-of-guilt strategy is not the

equivalent of a guilty plea and therefore the trial judge has no obligation

to canvass a defendant concerning a concession-of-guilt strategy; instead,

the reasonableness of counsel's performance is a matter to be determined

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in an appropriate proceeding based on the inquiry that generally applies

to ineffective-assistance-of-counsel claims. Given that holding, any

deficiencies in the canvass conducted in this case do not warrant relief

from the judgment of conviction.

FACTS AND PROCEDURAL HISTORY

Armenta-Carpio was charged with attempted sexual assault of

a child under 14 years of age, five counts of lewdness with a child under 14

years of age, attempted lewdness with a child under 14 years of age, and

child abuse and neglect. All of the charges involved his daughter and

occurred over a five-year period. During opening statement at trial,

defense counsel related to the jury that "[t]hings happen[ed] between my

client and his daughter," and therefore, according to counsel, the case was

not about whether Armenta-Carpio had sexual contact with the victim but

whether the State had overcharged the case. Defense counsel explained to

the jury that the victim told Child Protective Services about three

incidents—not eight as the State charged—and that Armenta-Carpio's

police statement was "pretty consistent" with what the victim told the

police. Thereafter, in a hearing outside the jury's presence, the district

court queried Armenta-Carpio about whether he had agreed to counsel's

strategy to concede guilt as to some conduct while challenging the number

of incidents alleged by the State. Armenta-Carpio responded that he had.

Counsel made similar concessions during closing arguments, suggesting to

the jury that although Armenta-Carpio had some sexual contact with the

victim, it was not as extensive as the State contended. The jury disagreed

and found Armenta-Carpio guilty of all the charges. At sentencing, the

district court determined that the attempted-sexual-assault count merged

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with one of the lewdness counts and therefore did not adjudicate Armenta-

Carpio on the attempted-sexual-assault count. This appeal followed.

DISCUSSION

Relying on Hernandez, Armenta-Carpio argues that the

district court's canvass concerning the concession strategy was

inadequate, and therefore, his consent was involuntary and unknowing.

Armenta-Carpio acknowledges that he did not object to the district court's

canvass. We therefore review his claim for plain error affecting his

substantial rights. Gallego v. State, 117 Nev. 348, 365, 23 P.3d 227, 239

(2001) (concluding that failure to object generally precludes appellate

review but this court has discretion to address any errors that are plain

from record and affect defendant's substantial rights), abrogated on other

grounds by Nunnery v. State, 127 Nev. , n.12, 263 P.3d 235, 253

n.12 (2011), cert. denied, 567 U.S. , 132 S. Ct. 2774 (2012).

Hernandez involved an appeal from an order denying a post-

conviction habeas petition. One of the ineffective-assistance claims

challenged trial counsel's concession that Hernandez was culpable for the

victim's murder. 124 Nev. at 989, 194 P.3d at 1242. In particular,

Hernandez argued that trial counsel failed to secure his consent to the

concession. Relying primarily on State v. Perez, 522 S.E.2d 102, 106 (N.C.

Ct. App. 1999), this court concluded that "[a] concession of guilt involves

the waiver of a constitutional right that must be voluntary and knowing."

Hernandez, 124 Nev. at 990, 194 P.3d at 1243. Although the issue

presented involved counsel's performance, we went beyond that issue "to

address the proper procedure when a defense strategy at trial includes a

concession of guilt." Id. We explained that "[a]t a minimum," the district

court should canvass the defendant outside the presence of the jury and

the State to ensure and make findings on the record that the defendant

understands the strategy behind conceding guilt and advise the defendant

that conceding guilt relieves the State of its burden of proof for an offense

and that he has the right to challenge the State's evidence. Id. at 990-91,

194 P.3d at 1243.

Our conclusion in Hernandez that a concession strategy must

be voluntary and knowing and the canvass procedures that we embraced

find their footing in the reasoning set forth in Perez. The Perez court

reasoned that a concession of guilt is the functional equivalent of a guilty

plea because it deprives a defendant of his rights to cross-examination,

confrontation, and a trial by jury. Perez, 522 S.E.2d at 106. Based on that

analogy, the Perez court concluded that a concession strategy, like a guilty

plea, requires the defendant's knowing and voluntary consent "after full

appraisal of the consequences" reflected on the record. Id.

Significant flaws in the Perez court's reasoning are pointed out

in a Supreme Court decision issued five years after Perez. In Florida v.

Nixon, the Supreme Court expressly rejected the idea that a concession of

guilt at trial is the functional equivalent of a guilty plea. 543 U.S. 175,

188 (2004). The Court explained that unlike a guilty plea, a concession

strategy preserves the rights accorded a defendant in a criminal trial: (1)

the prosecution is still required to present competent, admissible evidence

establishing the essential elements of the charged crimes; (2) the defense

retains the right to cross-examine prosecution witnesses and pursue

exclusion of prejudicial evidence; and (3) the defense can seek relief on

appeal from trial error. Id. As the Supreme Court had observed decades

earlier, "[a] plea of guilty is more than a confession which admits that the

accused did various acts; it is itself a conviction; nothing remains but to

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give judgment and determine punishment." Boykin v. Alabama, 395 U.S.

238, 242 (1969). The Supreme Court also rejected the idea that counsel is

automatically barred from pursuing a concession strategy just because the

defendant, informed by counsel, neither consents nor objects to the course

that counsel determines is the best strategy, explaining that the issue in

those cases is whether counsel's representation fell below an objective

standard of reasonableness and prejudiced the defense. Nixon, 543 U.S. at

178-79; see also Strickland v. Washington, 466 U.S. 668 (1984).

Although the Supreme Court's decision in Nixon was available

when we decided Hernandez, our opinion makes no mention of it and does

not discuss the reasoning underlying Perez in any significant degree. That

is not necessarily surprising as the parties did not address Nixon even

though it involved an ineffective-assistance claim based on a concession of

guilt. Having now considered our reasoning in Hernandez in light of the

Supreme Court's decision in Nixon, we are persuaded that there are

significant differences between a concession strategy at trial and a guilty

plea such that a concession strategy does not involve the waiver of a

constitutional right that must be knowing and voluntary. A concession of

guilt is simply a trial strategy—no different than any other strategy the

defense might employ at trial. As such, there is no reason to conduct a

mid-trial canvass to determine a defendant's knowledge of or consent to

that particular strategy. If a defendant is dissatisfied with the strategy,

he may challenge the reasonableness of counsel's performance. Thus, the

foundation for the canvass requirements set forth in Hernandez is

unsound. The question is whether we are compelled to perpetuate

Hernandez's canvass procedure despite its unsound foundation.

"[U]nder the doctrine of stare decisis, we will not overturn

[precedent] absent compelling reasons for so doing." Miller v. Burk, 124

Nev. 579, 597, 188 P.3d 1112, 1124 (2008) (footnote omitted). While we

are loath to depart from the doctrine of stare decisis, we also cannot

adhere to the doctrine so stridently that the 'law is forever encased in a

straight jacket.' Adam v. State, 127 Nev. „ 261 P.3d 1063, 1065

(2011) (quoting Rupert v. Stienne, 90 Nev. 397, 400, 528 P.2d 1013, 1015

(1974)). In considering the canvass procedures set forth in Hernandez,

there are two reasons that our departure from the doctrine of stare decisis

is warranted. First, the part of Hernandez that prospectively adopts

procedures that the district court must undertake to ensure that a

concession is knowing and voluntary went beyond answering the limited

question that was before the court—whether counsel provided

constitutionally ineffective assistance by adopting a concession strategy.

That part of Hernandez therefore was dicta. See Argentena Consol.

Mining Co. v. Jolley Urga Wirth Woodbury & Standish, 125 Nev. 527, 536,

216 P.3d 779, 785 (2009) ("A statement in a case is dictum when it is

'unnecessary to a determination of the questions involved.' (quoting St.

James Viii., Inc. V. Cunningham, 125 Nev. 211, 216, 210 P.3d 190, 193

(2009))). Second, the reasoning underlying the canvass procedure set forth

in Hernandez is clearly erroneous, particularly viewing that reasoning in

light of Nixon. These foundational problems with Hernandez reflect more

than a "[m]ere disagreement" with that decision, Burk, 124 Nev. at 597,

188 P.3d at 1124 (observing that more than "[m]ere disagreement" is

required to overturn precedent), requiring that we depart from the

doctrine of stare decisis to avoid the perpetuation of that error. See Stocks

v. Stocks, 64 Nev. 431, 438, 183 P.2d 617, 620 (1947) ("While courts will

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indeed depart from the doctrine of stare decisis where such departure is

necessary to avoid the perpetuation of error, the observance of the doctrine

has long been considered indispensable to the due administration of

justice, that a question once deliberately examined and decided should be

considered as settled." (internal citation and quotation marks omitted)).

We therefore overrule Hernandez to the extent that it holds that a

concession of guilt is the functional equivalent of a guilty plea, triggering

the protections and consequences attendant to entering a guilty plea and

requiring a canvass by the trial court.

Our decision today does not undermine a defendant's right to

challenge the reasonableness of counsel's concession strategy. We are not

faced with a challenge to the reasonableness of counsel's performance in

this case. Although we have addressed an ineffective-assistance claim

based on a concession strategy for the first time on appeal where the

concession contradicted the defendant's trial testimony, see, e.g., Jones v.

State, 110 Nev. 730, 877 P.2d 1052 (1996), Armenta-Carpio did not raise

an ineffective-assistance claim and, even if he had, the circumstances here

would not allow us to consider such a claim for the first time on appea1. 1

Because we are persuaded that canvassing a defendant to

ensure knowledge of and voluntary consent to a concession strategy is

unnecessary, we conclude that Armenta-Carpio is not entitled to relief on

1 Becausewe are not faced with an ineffective-assistance claim, we

express no opinion as to whether Nixon undermines any of our reasoning

in Jones.

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the ground that the district court's canvass was inadequate. We therefore

affirm the judgment of conviction.

We concur:

C.J.

ittat-t J.

Hardesty

J.

J.

Saitta

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