Black (Demetrius) v. State

Clowers explained all of the original charges that Black was facing in this matter, as well as in two other matters, and the maximum penalties Black would face on those charges. Ms. Clowers stated that the plea negotiations "package[d] everything up" and greatly limited Black's sentencing exposure. She then stated she wanted to make sure that Black understood that by rejecting the negotiation, he would "open himself to being sent to prison for over a hundred years." The following exchange then occurred: THE COURT: And you think it's in your best interest to go to trial? You've explained to him, Mr. Sanft, that I'm probably the toughest sentencer in the building. MR. SANFT: I think both he and his family understand that. THE COURT: Okay. That's fine. Sometimes, Mr. Sanft, it's just a slow plea. MR. SANFT: Yes, Your Honor. [Colloquy between Counsel and the Defendant] THE COURT: And, Mr. Sanft, explain to him what — had the codefendant just made admissions that he and Mr. Black did this stuff. MR. SANFT: Yes, Your Honor. He — THE COURT: Proof problem is now not quite as difficult, to me. MR. SANFT: No, Your Honor, it's not. [Colloquy between Counsel and the Defendant] THE COURT: All right. 9:30, Tuesday. We'll pick a jury. Talk to him about an Alford plea, if you want, take an Alford plea. MS. CLOWERS: I'm fine with that, Judge.

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THE COURT: Do you want to talk to him about an Alford plea? MR. SANFT: I'll just have a second with him out here, Your Honor. [Matter trailed at 9:24 a.m.] [Matter recalled at 9:52 a.m.] THE COURT: C280797, Demetrius Black. Why don't you get Mr. Black back in? Are we going to trial on Tuesday? MR. SANFT: Your Honor, I'd like to have an opportunity of my client speaking to his brother. I've spoken with the COs and they've agreed to allow him to at least have a few words before — THE COURT: Yes, if they — I'm going to step out. MR. SANFT: Yes, Your Honor. THE COURT: State will step out as well. The attorneys. • • • We'll let you get — we'll clear—we'll clear the State out. I'll leave. Staff will leave. MR. SANFT: Staff could stay here, Your Honor. I don't — there's nothing privileged about it. I think there just — THE COURT: Okay. MR. SANFT: — needs to be a conversation. So. [Matter trailed at 9:53 a.m.] [Matter recalled at 10.17 a.m.] THE COURT: C280797, Demetrius Black. My understanding this case is negotiated. MR. SANFT: It has been, Your Honor.

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Thereafter, the judge conducted a plea canvass and accepted Black's Alford plea. Prior to sentencing, Black filed a proper person motion to withdraw his plea. The judge appointed counsel to assist Black with the motion and counsel filed a supplemental motion to withdraw the guilty plea. Black asserted that the judge improperly participated in the plea negotiations and the participation coerced him into pleading guilty. He further stated that he wanted to proceed to trial. The judge denied the motion, saying that he was not trying to force a negotiation, but was bringing matters up to see if counsel had adequately discussed them with Black, which the judge believed he was obligated to do. We conclude that the judge improperly participated in the discussions of the plea agreement. See Cripps v. State, 122 Nev. 764, 770- 71, 137 P.3d 1187, 1191 (2006) ("[J]udicial participation in the formulation or discussions of a potential plea agreement [are prohibited] with one narrow, limited exception."). Although it was proper for the district court to allow the parties to make a record that a plea had been offered, identifying the details of the offer; the plea offer had been communicated to Black; and Black rejected the offer, see Missouri v. Frye, U.S. , , 132 S. Ct. 1399, 1408-09 (2012), the judge's statement that he is "the toughest sentencer in the building," his opinion that the State would now have a less difficult time proving the charges against Black, and his suggestion that Black consider taking an Alford plea were not required under Frye and were arguably coercive. Further, Black has demonstrated that the judge's participation was "a material factor affecting this] decision to plead guilty" and, therefore, he has met his burden of demonstrating

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that the judge's participation was not harmless. Id. at 771, 137 P.3d at 1192 (quotation marks omitted). Accordingly, we conclude that the district court erred by denying Black's motion to withdraw his guilty plea, and we ORDER the judgment of conviction REVERSED AND REMAND this matter to the district court for proceedings before a different district court judge consistent with this order.

Pieki24 tlif Pickering

J. Saitta

cc: Hon. Douglas Smith, District Judge Nguyen & Lay Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

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