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Nevada Supreme Court: Defendant Has Right to Withdraw Plea Where He Wasn’t Informed of Range of Possible Punishments

Banka entered an Alford plea to driving and/or being in actual physical control of a motor vehicle while under the influence of an intoxicating liquor or alcohol resulting in substantial bodily harm. NRS §§ 484C.110(1), 484C.430(1). In a written plea agreement, Banka acknowledged that he understood the consequences of the plea, including that he may be fined up to $5,000. At the district court’s canvass of Banka, the judge clarified that the fine was mandatory but said “because of the language of up to five thousand, I could do something much less than that obviously, but I have to ... impose a fine.”

Prior to sentencing, Banka learned that the fine had to be a minimum of $2,000, and he moved to withdraw his plea. The district court denied the motion on the ground that since Banka was informed of a mandatory fine of up to $5,000, he was on notice for a fine of at least $2,000. Banka appealed the denial.

The Nevada Supreme Court observed “[a] presentence motion to withdraw a guilty plea may be granted ‘for any reason where permitting withdrawal would be fair and just.’” Stevenson v. State, 354 P.3d 1277 (Nev. 2015). To enter a knowing and voluntary plea, a defendant must have “a full understanding of ... the direct consequences arising from a plea of guilty.” Little v. Warden, 34 P.3d 540 (Nev. 2001). Knowing the range of possible punishments is required to enable a defendant to knowingly decide whether to plead guilty or to go to trial. Id. A consequence is “direct” if it has definite, immediate, and largely automatic effect on the range of a defendant’s punishment. Id. Mandatory statutory fines are direct punitive consequences of a defendant’s guilty plea. Martinez v. State, 88 P.3d 825 (Nev. 2004). It must affirmatively appear somewhere in the record that the defendant was made aware of the consequences of his or her plea. Skinner v. State, 930 P.2d 748 (Nev. 1997).

The Court noted “[t]he required fine for violating NRS § 484C.430 is ‘not less than $2,000 nor more than $5,000.’” Banka’s agreement failed to inform him the fine was mandatory by erroneously stating he may be fined up to $5,000. And nowhere in the record prior to entering his plea was Banka informed of the mandatory minimum fine of $2,000. Additionally, the district court’s comments during canvass implied the judge could impose only a nominal fine.

The Court instructed that “[w]here there is a range of punishments – by fine or by imprisonment – the defendant must be informed of both the floor and ceiling of that range in order to make a knowing and voluntary decision. Because Banka was not informed of the mandatory minimum statutory fine, we conclude that the district court abused its discretion in denying Banka’s presentence motion to withdraw his guilty plea.”

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Banka v. State



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