Waiving Counsel, Common Scheme/Plan, Competency and More


(Unpublished Court of Appeals order of reversal and remand)

An appeal from a judgement of conviction by a jury for battery with the use of a deadly weapon constituting domestic violence (strangulation). Hudson went to trial and was convicted then sentenced as a habitual offender. He claims he did not know of habitual penalty, and thus appealed his conviction as he did not “knowingly, intelligently, and voluntarily” waive his right to counsel when he chose self-representation for trial.

In reviewing the record, the Appellate Court determined Hudson was told by the district court judge of the potential sentences he was facing when he was canvassed regarding rejecting a plea deal. The district court however, did not discuss the possibility of habitual criminal adjudication.  It is not clear that the district court informed Hudson of the possibility of habitual sentencing enhancement in his case.  Therefore, the Appellate Court determined that the record as a whole did not show that his waiver was reasonable—"given the U.S. Supreme Court's mandate that we 'indulge in every reasonable presumption against waiver' of the right of counsel.'" Accordingly, the Court of Appeals ordered that the judgement of the lower court was wrong to accept his waiver of counsel, reversed and remanded for a new trial.


(Unpublished Court of Appeals order of reversal and remand)

Bubak appealed his judgment of conviction, pursuant to a jury verdict of possessing visual presentations depicting sexual conduct of a child. He appealed because of the district court's failure to hold a Petrocelli hearing and also because of issues with late discovered inculpatory evidence. Bubak says these caused great prejudice in his trial and should have constituted a mistrial.

Bubak's bought a computer a few years back that had the program Limewire installed. 128 empty files were found in the Limewire program, labeled as explicit content concerning minors. These files were admitted into trial without any other supporting remnants of explicit content; and without a Petrocelli hearing to admit it as bad act evidence. The lower court’s reasoning for this error was that the State never filed the evidence according to NRS as bad act evidence, so the court could not hold a Petrocelli hearing to analyze the potential bad acts evidence. The Court of Appeals held that this evidence was improperly admitted.

Police found no other remnants of the empty files, until the night before the States expert witness testified. The expert claimed he found an image of the opening scene of an explicit video depicting child pornography. The defense was told minutes before trial resumed. Defense asked for a continuance to be able to examine the newly found evidence, but the judge rejected as they already knew about the files. The Appellate Court ruled it prejudicial that as the defense could not have their own expert witness examine the evidence and they were not prepared to cross-examine the states witness with this new and inculpatory evidence. The case was reversed and remanded for a new trial in this matter.


(Unpublished Court of Appeals order of affirmance)

This was an appeal from an amended judgment of a guilty plea entered for two burglary counts. Hickey claimed that the District Court erred in denying his motion to dismiss the indictment since the state failed to provide reasonable notice of the Grand Jury proceedings. Hickey filed a motion to dismiss the indictment. Prior to the issue being ruled upon, Hickey voluntarily entered a guilty plea. The district court subsequently denied his motion to dismiss the indictment.  On appeal for the denial of the motion, the Court of Appeals affirmed that Hickey had waived his reasonable notice claim by pleading voluntarily.

Generally, entering into a guilty plea takes away the right to appeal anything that occurred before the plea. An exception would be NRS 174.035(3), which allows a defendant entering a guilty plea to preserve their right to appeal in writing on a specific pretrial motion, granted that they have consent of the district court and district attorney.



 (Unpublished Supreme Court opinion reversal and remand)

Reyes was found guilty of two sexual assaults of minors under the age of 14. One incident occurred in 2006, but was not reported until 2011. The second occurred in 2012. He filed a motion to sever the trials. The court denied on the “grounds that the evidence of the separate crimes would be cross-admissible in the separate trials as bad acts.”

Reyes was accused but never charged with sexually assaulted his ex-girlfriends daughter in 2006. In 2012, he was accused of another sexual assault. Allegedly, he had tried to touch his friend's wife. When she turned him down, he went and assaulted her daughter. The Supreme Court found that each of his crimes were not an “integral part of an overarching plan explicitly conceived and executed by the defendant.” (Richmond v. State). Under NRS 173.115, the acts were not found to be part of a common scheme, and would not qualify as a bad act. The Court determined that a “scheme is a design or plan formed to accomplish some purpose” The Court reasoned that Reyes did not intentionally isolate the second child as his first target was the mother, therefore this was an independent crime from the first sexual assault where he targeted a minor. The Supreme Court reversed and remanded this matter.


(Unpublished Supreme Court order of affirmation)

Appellant Ashraf was accused with stabbing and killing his wife. He was born deaf, lacked education, and was not able to sufficiently communicate. Asfraf was competency evaluated, deemed incompetent to assist his counsel due to lack of communication, and was sent to Lake's Crossing.  Three and half years later, Ashraf claimed that the district court acted arbitrarily and capriciously by keeping him at Lake's in an attempt to teach him attain competentency. He claims that this delay violated his due process.

If, during the course of proceedings, it is concluded that the defendant has little substantial chance of attaining competency in the foreseeable future, the defendant must be dismissed from charges and put into an mental institution. Ashraf was committed at Lake’s Crossing. They held hearings with the district court every six months to evaluate his progress of competency. 

Ashraf asserts that there was an abuse of discretion at a hearing when the district court concluded that he could be rendered competent in the foreseeable future. He contends that the reports from hospital staff did not show significant improvement, and was supplemented by reports of his own experts and his inability to effectively communicate with counsel over three years of treatment. This demonstrated that his progress towards competency was very low. The Supreme Court still found that Ashraf failed to demonstrate that the lower court abused its discretion in concluding that he would be rendered competent in the foreseeable future. The Supreme Court affirmed the ruling of the lower court.