Schertz v. State

[378] OPINION Per Curiam: This is an appeal from an order of the district court denying Joyce Schertz’s motion to withdraw her plea of no contest to one count of conspiracy to obtain money by false pretenses, a violation of NRS 199.480 and 205.380. On April 9, 1990, Schertz accessed her account at Valley Bank of Nevada with her automatic teller machine (ATM) card. The receipt from her transaction indicated that her account balance was approximately $5,000 more than the amount she expected to be in her account. Schertz immediately notified a bank employee about the discrepancy. The bank employee told Schertz that there was no mistake and the money was hers to spend. Several days later, Schertz conducted another ATM transaction and discovered that her account balance still evidenced the unexpected $5,000. Once again, Schertz contacted the bank. A bank employee told her that somebody else probably placed the money in her account and as far as the bank was concerned she was free to spend the money. Schertz paid off a student loan, reupholstered furniture, paid medical bills, and spent money on her children. Several months later, Valley Bank discovered its error. A branch manager of the bank and a security officer, a former FBI agent, approached Schertz at her home. The branch manager notified Schertz of the bank’s mistake and demanded return of the money. Schertz offered to make monthly payments of $50, but the branch manager refused. The branch manager stated that unless Schertz made full restitution immediately, she would be prosecuted. The state initially charged Schertz with one count of grand larceny, a violation of NRS 205.237, and one count of obtaining [379] money by false pretenses, a violation of NRS 205.380. Pursuant to plea negotiations, Schertz entered a plea of no contest to one count of conspiracy to obtain money by false pretenses, a violation of NRS 199.480 and 205.380. The state acknowledges that the conspiracy charge is fictional. The district court sentenced Schertz to a term of one year in the Washoe County jail. The district court suspended the sentence and placed Schertz on probation for an indeterminate period not to exceed three years. The district court ordered Schertz to pay $4,706.44 in restitution. After paying the restitution in full, Schertz filed a motion to withdraw her plea, which included allegations of ineffectiveness assistance of counsel and manifest injustice. The state opposed the motion. After conducting an evidentiary hearing, the district court denied Schertz’s motion. This appeal followed. Schertz entered a plea of no contest to conspiracy to obtain money by false pretenses. All parties acknowledge that the conspiracy charge was fictional. There is no allegation, nor could there be, that Schertz acted with any other person in obtaining money from the bank. The state initially charged Schertz with grand larceny and obtaining money by false pretenses. NRS 205.237 provides, in part: “A person who uses a card or other device for automatically withdrawing or transferring money in a financial institution to obtain intentionally money to which [she] knows [she] is not entitled is guilty of grand larceny and shall be punished by imprisonment in the state prison for not less than 1 year . . . .” (Emphasis added.) Clearly, Schertz did not use her ATM card to obtain the money. Her account balance indicated that she had the money before she withdrew the funds.1 In any event, Schertz [380] believed that she was entitled to the funds at the time she withdrew the money.2 There is no evidence to the contrary. NRS 205.380 provides, in part: “Every person who knowingly and designedly by any false pretense obtains from any other person any . . . money, . . . with intent to cheat or defraud the other person, is a cheat, and, unless otherwise prescribed by law, shall be punished . . . .” (Emphasis added.) The elements of the crime of obtaining money by false pretenses are (1) intent to defraud, (2) a false representation, (3) reliance on that representation, and (4) that the victim be defrauded. Barron v. State, 105 Nev. 767, 774, 783 P.2d 444, 449 (1989). There is no evidence that Schertz intended to defraud the bank, no evidence that she made a false representation, and no evidence that the bank relied on that non-existent representation. Cf. Gorka v. State, 107 Nev. 851, 822 P.2d 111 (1991) (insufficient evidence to sustain conviction of obtaining money by false pretenses where the record is devoid of any evidence supporting the conclusion that appellant misrepresented her place of residence). Under these specific and undisputed facts, we conclude that there was no basis for prosecution of Schertz.3 Accordingly, the judgment of conviction entered by the district court is vacated and the information is dismissed.4 Footnotes [1] The following exchange between Schertz’s attorney and Larry Johnston, the branch manager, provides a description of the bank’s mistake: [Schertz’s attorney]: Q. The mistake was made when erroneously the checking account of Joyce Schertz was linked to the savings account of another individual which would allow Miss Schertz to withdraw money from her checking, using her checking [ATM] card and withdrawing the money from the other individual’s savings account. The balance of the savings account of the other individual was, at the time the mistake was made, over $5,000. There was the mistake that was made, was a simple transposition. There were two numbers different that were erroneously switched, which caused the problem, [sic] Would that be two numbers on the savings account number, the ATM number, which numbers were erroneously switched, if you know? [Larry Johnston]: A. It would have had to have been the savings account number that was opened up later. So in other words, monies weren’t erroneously deposited into her account. What happened, was it was made possible that she could access the monies in her [ATM] card. Subsequently, Johnston agreed that the bank’s mistake created an impression that the money was in Schertz’s account. [2] Apparently, Schertz’s trial attorney, the state and the district court were under the impression that Schertz could form the intent to commit these crimes months after she withdrew the money from the bank. Schertz’s trial attorney indicated that the intent to defraud was formed when the bank notified Schertz of its mistake because Schertz was unable to immediately repay the money in full. This argument is repudiated by fundamental principles of criminal jurisprudence. “The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion.” Morissette v. United States, 342 U.S. 246, 250 (1952); see also Wayne R. LaFave & Austin W. Scott, Jr., Handbook on Criminal Law § 24 at 176, § 34 at 237-39 (1972); Charles E. Torda, Wharton’s Criminal Law § 27 at 134-35, § 76 at 367-69; Black’s Law Dictionary 727 (5th ed. 1979); Robey v. State, 96 Nev. 459, 611 P.2d 209 (1980). [3] At oral argument, the state suggested that because Schertz entered a plea of no contest, the state was deprived of its opportunity to present evidence against Schertz. This argument is belied by the record. The district court conducted a hearing on Schertz’s motion to withdraw her plea of no contest. During the hearing, the state presented evidence to the district court. Schertz’s trial attorney appeared as a witness for the state. The state actively questioned numerous witnesses, including the bank branch manager. The state had ample opportunity to develop evidence against Schertz. [4] The Honorable Miriam Shearing, Justice, did not participate in the decision of this appeal.