Ponce (Freddy) v. State ( 2014 )

 him withdraw?" The district court told Ponce it would contact his counsel
and tell him that Ponce had an urgent matter to speak with him about.
One month later, counsel informed the district court that Ponce had filed a
proper person motion to withdraw his guilty plea but that counsel had not
seen the motion. The district court did not find any record of Ponce's
motion and told counsel that it would be considered a "fugitive document,"
presumably because Eighth Judicial District Court Rule 3.70 prohibits the
district court from filing proper person motions delivered by a defendant
who is represented by counsel. The district court then pronounced Ponce
guilty based upon his previously entered guilty plea.
During allocution Ponce told the court that he asked his
counsel to withdraw his plea on his behalf and gave several reasons why
he was concerned with the circumstances surrounding his plea agreement,
particularly his agreement to plead guilty to a fictitious robbery count.
Ponce then asked the court to "either run [his robbery conviction]
concurrent, or dismiss the robbery, or allow him to withdraw." While this
last statement could be construed as an oral request to withdraw his
guilty plea, Ponce's request was equivocal. Based on the limited record
before this court, Ponce appears to have wanted to renegotiate his guilty
plea rather than completely withdraw it and proceed to trial. Because of
the equivocal nature of Ponce's statement, we cannot say that the district
court abused its discretion by failing to construe his statements as an oral
motion to withdraw his guilty plea and rule on whether he had a "fair and
just" reason to withdraw his guilty plea. The district court also did not
deny Ponce the right to file a motion to withdraw his guilty plea. Any
claim that Ponce's counsel was ineffective for failing to agree to his
repeated requests to file a presentence motion to withdraw his guilty plea
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on his behalf must be brought in a post-conviction petition for a writ of
habeas corpus. See id. at 882, 34 P.3d at 534; see also NRS 34.726(1)
("Unless there is good cause shown for delay, a petition . . . must be filed
. . . within 1 year after the Supreme Court issues its remittitur" on direct
appeal.).
Third, Ponce contends that the district court abused its
discretion at sentencing by not following the recommendation of the
Division of Parole and Probation and considering other mitigating factors
and that its sentencing decision amounts to cruel and unusual
punishment under the United States Constitution. U.S. Const. amend.
VIII. This• court will not disturb a district court's sentencing
determination absent an abuse of discretion. Rondell v. State, 109 Nev. 5,
8, 846 P.2d 278, 280 (1993). Ponce has not alleged that the district court
relied solely on impalpable or highly suspect evidence or that the
sentencing statute is unconstitutional. See Chavez v. State, 125 Nev. 328,
348, 213 P.3d 476, 489-90 (2009). "Furthermore there is no requirement
imposed upon the sentencing court to set the penalty in compliance with
the recommendations of the [Division] of Parole and Probation." Collins v.
State, 88 Nev. 168, 171, 494 P.2d 956, 957 (1972). Ponce's consecutive
sentences of life with a minimum parole eligibility after 10 years and 180
months with a minimum parole eligibility after 60 months falls within the
parameters provided by the relevant statutes, see NRS 200.030(5); NRS
200.380(2), and we conclude that his sentence is not so unreasonably
disproportionate to the gravity of the offenses as to shock the conscience,
see Harmelin v. Michigan, 501 U.S. 957, 1000-01 (1991) (plurality
opinion); CuIverson v. State, 95 Nev. 433, 435, 596 P.2d 220, 221-22 (1979).
Therefore, we conclude that the district court did not abuse its discretion
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at sentencing and Ponce's sentence did not amount to cruel and unusual
punishment.
Having considered Ponce's contentions and concluded that he
is not entitled to relief', we
ORDER the judgment of conviction AFFIRMED.
(
Hardesty
J.
Douglas
J.
cc: Hon. Michael Villani, District Judge
Mario D. Valencia
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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