Burd (Travis) v. State

"When the State enters into a plea agreement, it is held to the most meticulous standards of both promise and performance with respect to both the terms and the spirit of the plea bargain." Sparks v. State, 121 Nev. 107, 110, 110 P.3d 486, 487 (2005) (internal quotation marks omitted). Here, only Burd, not the State, stipulated to a prison term of 48- 120 months if he violated the terms of the plea agreement. Additionally, the plea agreement also included express terms stating that if Burd failed to appear for his scheduled sentencing hearing or committed a new

criminal offense, the State "would regain the full right to argue for any lawful sentence." Burd failed to appear for his sentencing hearing and he committed a new offense, therefore, we conclude that the State did not breach the plea agreement by arguing for habitual criminal adjudication. Second, Burd contends that his guilty plea was not entered knowingly and intelligently because he "was not on notice that the State could seek habitual criminal treatment if he violated the guilty plea agreement." As a result, Burd claims that the district court abused its

discretion by adjudicating him as a habitual criminal. Challenges to the validity of a guilty plea must generally be raised in the district court in the first instance by either filing a motion to withdraw the guilty plea or

...continued State retains the right to argue, but the State agrees to a cap of six (6) years on the top and will not seek habitual criminal treatment." (Emphasis added.)

The district court adjudicated Burd as a habitual criminal pursuant 2 to NRS 207.010(1)(a) and sentenced him to 60-150 months.

SUPREME COURT OF NEVADA

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commencing a post-conviction proceeding pursuant to NRS Chapter 34. See Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986), limited by Smith v. State, 110 Nev. 1009, 1010 n.1, 879 P.2d 60, 61 n.1 (1994); see also O'Guinn v. State, 118 Nev. 849, 851-52, 59 P.3d 488, 489-90 (2002). Burd did not challenge the validity of his plea in the district court and we conclude that the claim is not appropriate for review on direct appeal. See O'Guinn, 118 Nev. at 851-52, 59 P.3d at 489-90; see also Ford v. Warden, 111 Nev. 872, 884, 901 P.2d 123, 130 (1995) (holding that an appellant "cannot change [his] theory underlying an assignment of error on appeal"). Additionally, we conclude that Burd failed to demonstrate that the district court abused its discretion by adjudicating him as a habitual criminal. See NRS 207.010(2); O'Neill v. State, 123 Nev. 9, 15-16, 153 P.3d 38, 42-43

(2007); Hughes v. State, 116 Nev. 327, 333, 996 P.2d 890, 893 (2000). Accordingly, we ORDER the judgment of conviction AFFIRMED.

J .

Hardesty

cc: Hon. Michelle Leavitt, District Judge Clark County Public Defender Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk SUPREME COURT OF NEVADA

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