Jezierski v. State

[396] OPINION By the Court, Mowbray, C. J.: On December 12, 1989, Mr. Jezierski was charged, by way of information, with three counts of child abuse with substantial bodily harm, one count of child abuse with substantial mental injury, and one count of sexual assault of a minor under fourteen years of age. On January 23, 1990, pursuant to a plea negotiation, Jezierski plead guilty to one count of child abuse with substantial bodily harm. Prior to sentencing, Jezierski made a motion to withdraw his plea. Mr. Jezierski did not understand that the allegations made in connection with the dismissed counts could be considered in sentencing him. The court denied Jezierski’s motion and sentenced him to twelve years. The State suggests that this case is controlled by Ferris v. State, 100 Nev. 162, 677 P.2d 1066 (1984). In Ferris, appellant moved to strike that portion of the presentence report pertaining to two of the dismissed charges. This court held that absent an agreement to the contrary, the State may include information in a presen-tence report pertaining to dismissed charges. Ferris, 100 Nev. at 163-164, 677 P.2d at 1067. Unlike Ferris, however, the present case does not involve a motion to strike portions of the presen-tence report; rather, it involves a pre-sentence request to withdraw a guilty plea. Mr. Jezierski entered a plea without being properly informed of the consequences. Pleading guilty to one count as part of a negotiated agreement, Mr. Jezierski was suddenly surprised to learn that the dismissed counts could be used against him anyway. Mr. Jezierski promptly attempted to withdraw the plea before sentencing. He was denied that opportunity. Mr. Jezierski should have been allowed to withdraw the plea. No public policy supports binding a defendant to his plea where the plea was made under misconception, and where the State has not yet been prejudiced. Such a result is not mandated by Ferris. For the foregoing reasons, we reverse the judgment of conviction and remand for trial on all counts. Springer and Rose, JJ., concur.