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Franklin v. State

Supreme Court of Nevada
Oct 25, 1994
110 Nev. 750 (Nev. 1994)

Summary

holding that direct appeal claims not raised on direct appeal are waived in subsequent proceedings

Summary of this case from Fillmore v. Budge

Opinion

No. 25563

July 7, 1994 Rehearing denied October 25, 1994

Appeal from the Eighth Judicial District Court, Clark County; Myron E. Leavitt, Judge.

Frank Kenneth Franklin, In Proper Person, Indian Springs, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney, Clark County, for Respondent.


OPINION


This is a proper person appeal from an order of the district court denying appellant's post-conviction petition for a writ of habeas corpus. On July 15, 1993, the district court convicted appellant, pursuant to an Alford plea, of one count of attempted robbery. The district court sentenced appellant to serve a term of seven and one half years in the Nevada State Prison. No timely notice of appeal was filed.

On January 27, 1994, appellant filed in the district court a post-conviction petition for a writ of habeas corpus. The state opposed the petition. On February 15, 1994, the district court, without appointing counsel or conducting an evidentiary hearing, denied appellant's petition. This appeal followed.

Our preliminary review of the record on appeal revealed that the district court may have erred in denying appellant's petition. In his petition, appellant argued, inter alia, that his trial counsel was ineffective because counsel failed to file a notice of appeal on appellant's behalf or inform appellant of his right to appeal. In the order denying appellant's post-conviction petition, the district court concluded that appellant did not demonstrate how the failure to inform him of his right to an appeal was prejudicial. This issue was the subject of a recent opinion by this court. Lozada v. State, 110 Nev. 349, 871 P.2d 944 (1994). In Lozada, this court concluded that if a petitioner for a post-conviction writ of habeas corpus demonstrates that he did not knowingly waive his right to an appeal, the district court shall appoint counsel to represent the petitioner and counsel shall present issues which could have been raised in a direct appeal.

Accordingly, this court ordered the state to show cause why the order of the district court should not be vacated and this matter remanded for further proceedings in light of Lozada. On May 23, 1994, the state filed its response to this court's order. In its response, the state argues that counsel in the instant case did not err in failing to tell appellant that he had a right to appeal because appellant had no right to appeal. The state argues that there is no right to a direct appeal from a guilty plea and cites McGee v. State, 105 Nev. 718, 782 P.2d 1329 (1989), and Bryant v. State, 102 Nev. 268, 721 P.2d 364 (1986), in support of its argument.

This court's prior precedents do not preclude a direct appeal from a defendant whose conviction is based on a guilty plea. Instead, we have held that challenges to the validity of a guilty plea and claims of ineffective assistance of trial and appellate counsel must be first pursued in post-conviction proceedings in the district court. McGee v. State, 105 Nev. 718, 782 P.2d 1329 (1989) (challenge to guilty plea); Bryant v. State, 102 Nev. 268, 721 P.2d 364 (1986) (validity of plea); Gibbons v. State, 97 Nev. 520, 634 P.2d 1214 (1981) (ineffective assistance of counsel). Nevertheless, all other claims that are appropriate for a direct appeal must be pursued on direct appeal, or they will be considered waived in subsequent proceedings. These claims could include a challenge to the constitutional validity of the statute on which the conviction was based; a challenge to the sentence imposed on constitutional or other grounds; a claim that the state breached the plea agreement at sentencing; a challenge to the procedures employed that led to the entry of the plea, if that challenge does not address the voluntariness of the plea; and a claim that the district court entertained an actual bias or that there were other conditions that rendered the proceedings unfair. This list is intended to be illustrative, rather than inclusive. The state's argument that a person who is convicted pursuant to a guilty plea has no right to a direct appeal lacks merit.

Accordingly, we vacate the order of the district court and remand this matter for further proceedings consistent with Lozada v. State, 110 Nev. 349, 871 P.2d 944 (1994).


Summaries of

Franklin v. State

Supreme Court of Nevada
Oct 25, 1994
110 Nev. 750 (Nev. 1994)

holding that direct appeal claims not raised on direct appeal are waived in subsequent proceedings

Summary of this case from Fillmore v. Budge

holding that "claims that are appropriate for a direct appeal must be pursued on direct appeal, or they will be considered waived in subsequent proceedings," including a claim that the district court was biased

Summary of this case from McDaniels v. State

holding that "claims that are appropriate for a direct appeal must be pursued on direct appeal, or they will be considered waived in subsequent proceedings," including a claim that the district court was biased

Summary of this case from State v. Patterson

holding that "claims that are appropriate for a direct appeal must be pursued on direct appeal, or they will be considered waived in subsequent proceedings"

Summary of this case from Reed v. Baker

holding "claims that are appropriate for a direct appeal must be pursued on direct appeal, or they will be considered waived in subsequent proceedings"

Summary of this case from Taylor v. State

recognizing that defendant who pleads guilty may challenge sentencing procedures

Summary of this case from Bryant v. State

explaining that issues that could be raised on direct appeal must be raised on direct appeal or they will be waived in subsequent proceedings

Summary of this case from Guerrina v. State

explaining that issues that could be raised on direct appeal must be raised on direct appeal or they will be waived in subsequent proceedings

Summary of this case from Marlow v. Baca

identifying claims that may be raised on appeal from a judgment of conviction based on a guilty plea

Summary of this case from Robert C. v. State (Robert C.)

noting the limited circumstances in which a defendant may raise challenges relating to a guilty plea in an appeal from a judgment of conviction

Summary of this case from Santiago v. State

explaining that "claims that are appropriate for a direct appeal must be pursued on direct appeal, or they will be considered waived in subsequent proceedings"

Summary of this case from Smith v. State

stating that claim that state breached plea agreement must be raised on direct appeal or it is waived

Summary of this case from Sullivan v. State

stating that claims of ineffective assistance of counsel or challenges to the validity of a guilty plea must be first pursued in post-conviction proceedings, but other claims appropriate to direct appeal must be pursued on direct appeal or they are deemed waived

Summary of this case from Standley v. Warden

providing that "claims that are appropriate for a direct appeal must be pursued on direct appeal, or they will be considered waived in subsequent proceedings"

Summary of this case from Jackson v. State

providing that "claims that are appropriate for a direct appeal must be pursued on direct appeal, or they will be considered waived in subsequent proceedings"

Summary of this case from Jackson v. State

identifying "a challenge to the sentence imposed on constitutional or other grounds" as a claim that may be raised on direct appeal from a final judgment resulting from a guilty plea

Summary of this case from Mobley-Lance v. State
Case details for

Franklin v. State

Case Details

Full title:FRANK KENNETH FRANKLIN, APPELLANT, v. THE STATE OF NEVADA, RESPONDENT

Court:Supreme Court of Nevada

Date published: Oct 25, 1994

Citations

110 Nev. 750 (Nev. 1994)
877 P.2d 1058

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422 U.S. 806 (1975).Franklin v. State, 110 Nev. 750, 877 P.2d 1058 (1994), overruled in part on other grounds…

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In this case, Toston did not claim that counsel had a duty to inform him of his right to appeal and failed to…