Aldape v. State

535 P.3d 1184

Antonio Cruz ALDAPE, Appellant,

v.The STATE of Nevada, Respondent.

No. 83622

Supreme Court of Nevada.

Filed September 28, 2023

Darin Imlay, Public Defender, and Katherine E. Sitsis and Nadia Hojjat Wood, Chief Deputy Public Defenders, Clark County, for Appellant.

Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Jonathan VanBoskerck, Chief Deputy District Attorney, and Elan Adam Eldar, Deputy District Attorney, Clark County, for Respondent.

Christopher M. Peterson, Las Vegas, and Randolph M. Fiedler, Las Vegas, for Amici Curiae American Civil Liberties Union of Nevada and Nevada Attorneys for Criminal Justice.

BEFORE THE SUPREME COURT, EN BANC.¹

OPINION

By the Court, PICKERING, J.:

Appellant Antonio Aldape pleaded no contest to two counts of attempted lewdness with a child. The district court placed him on probation and imposed the special condition mandated by NRS 176A.410(1)(q), which prohibits any defendant who is on probation for a sexual offense from accessing the internet or possessing a device capable of accessing the internet without their probation officer's permission. On appeal, Aldape challenges the mandatory internet ban on First Amendment grounds. He argues that it fails intermediate scrutiny because a categorical prohibition on internet access by any probationer convicted of a sex offense is not narrowly tailored to the risk of online predatory behavior the individual probationer may pose. We agree and reverse the judgment as to the probation condition banning access to the internet. We otherwise affirm and, in doing so, reject Aldape's separate challenge to the additional probation condition forbidding him from visiting places such as playgrounds and schools that primarily cater to children.

I.

Aldape pleaded guilty pursuant to North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to two counts of attempted lewdness with a child under 14 for interactions with his step-granddaughter, V.I. The interactions occurred at Aldape's home and did not involve other children or the internet. The plea agreement permitted Aldape to substitute a guilty plea to two counts of sexually motivated coercion upon successful completion of probation and waived Aldape's right to a "direct appeal of [the] conviction." When the district court canvassed Aldape before accepting his plea, it asked Aldape if he understood that he was "waiving, that is giving up[,] your right to a jury trial and all the other rights I've just discussed and the rights that are set out and mentioned in your Guilty Plea Agreement[.]" The court did not ask any questions specific to the appeal waiver.

Aldape was adjudged guilty and given a suspended aggregate prison term of 8 to 20 years, with probation not to exceed 5 years. His judgment of conviction imposed the two probation conditions he now challenges: special condition 15, which prohibits Aldape from accessing the internet or possessing a device that can access the internet; and special condition 11, which prohibits Aldape from being "in or near" playgrounds, parks, schools, and businesses that primarily cater to children. Aldape challenged both conditions in district court on substantially the same grounds he raises on appeal. The district court rejected Aldape's challenges, and this appeal timely followed.

II.

As a threshold issue, the State argues that Aldape waived his right to appeal the conditions of his probation pursuant to the section of his plea agreement waiving his "right to a direct appeal of this conviction." In evaluating appeal waiver claims, courts consider "whether: (1) the appeal falls within the scope of the waiver; (2) both the waiver and plea agreement were entered into knowingly and voluntarily; and (3) enforcing the waiver would ... result in a miscarriage of justice." United States v. Adams , 12 F.4th 883, 888 (8th Cir. 2021) ; United States v. Hahn , 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc); see Burns v. State , 137 Nev. 494, 499-500, 495 P.3d 1091, 1099-1100 (2021). Although the parties address all three criteria, we only need to discuss the first—the scope of the waiver. In the plea agreement, Aldape waived the right to appeal his conviction, not his sentence or the probation conditions associated with his sentence. We therefore conclude that Aldape's appeal may proceed because his challenges to his probation conditions fall outside the scope of the appeal waiver. See Garza v. Idaho , 586 U.S. ––––, ––––, 139 S. Ct. 738, 744, 203 L.Ed.2d 77 (2019) ("As courts widely agree, a valid and enforceable appeal waiver only precludes challenges that fall within its scope.") (internal quotations omitted).

Contract principles apply to plea agreements, Burns , 137 Nev. at 496, 495 P.3d at 1097, and to appeal waivers in plea agreements, see Garza , 586 U.S. at ––––, 139 S. Ct at 744. A plea agreement is enforced as written, Burns , 137 Nev. at 497, 495 P.3d at 1097, "according to what the defendant reasonably understood when he or she entered the plea," Sullivan v. State , 115 Nev. 383, 387, 990 P.2d 1258, 1260 (1999). In the appeal waiver context, given the important rights at stake, the State "bears the burden of proving that the plea agreement clearly and unambiguously waives a defendant's right to appeal." Adams , 12 F.4th at 888. Ambiguities as to the scope of the waiver are construed against the State as the drafter of the plea agreement. Id. ; see Burns , 137 Nev. at 497, 495 P.3d at 1098.

The appeal waiver clause in Aldape's plea agreement did not refer to his sentence or probation conditions. It stated that he waived his right to appeal his conviction:

By entering my plea of guilty, I understand that I am waiving and forever giving up the following rights and privileges:

....

(6) The right to appeal the conviction with the assistance of an attorney, either appointed or retained, unless specifically reserved in writing and agreed upon as provided in NRS 174.035(3). I understand this means 1 am unconditionally waiving my right to a direct appeal of this conviction, including any challenge based upon reasonable constitutional, jurisdictional or other grounds that challenge the legality of the proceedings as stated in NRS 177.015(4), However, I remain tree to challenge my conviction through other post-conviction remedies including a habeas corpus petition pursuant to NRS Chapter 34.

(emphases added). As Aldape argues, the words "conviction" and "sentence" mean two different things. "Conviction" denotes guilt; "The act or process of judicially finding someone guilty of a crime; the state of having been proved guilty" or "[t]he judgment (as by a jury verdict) that a person is guilty of a crime." Conviction, Black's Law Dictionary (11th ed. 2019). "Sentence," by contrast, means "[t]he judgment that a court formally pronounces after finding a criminal defendant guilty; the punishment imposed on a criminal wrongdoer." Sentence, id.

The State argues that Aldape's appeal waiver covers the probation conditions imposed at time of sentencing, citing United States v. Wells , 29 F.4th 580 (9th Cir. 2022), and United States v. Holzer , 32 F.4th 875 (10th Cir. 2022), as support. But on close reading, Wells and Holzer support Aldape's position, not the State's. Unlike Aldape's appeal waiver, which only referenced his conviction, the waivers in Wells and Holzer applied to both the conviction and the sentence. Thus, in Wells , the waiver stated: "I agree to give up my right to appeal the judgment and all orders of the court. I also agree to give up my right to appeal any aspect of my sentence ," 29 F.4th at 584 (emphasis added), while in Holzer , the defendant waived "the right to appeal any matter in connection with this prosecution, conviction, or sentence ," 32 F.4th at 880 (emphasis added). The defendants in Wells and Holzer could not appeal their supervised release conditions because the conditions are an aspect of sentencing, which their appeal waivers covered. Wells , 29 F.4th at 584 (noting that an appeal waiver's "reference to ‘any aspect of the sentence’ unambiguously encompassed supervised release terms") (internal quotation omitted); see Holzer , 32 F.4th at 882 ; accord United States v. Andis , 333 F.3d 886, 893 n.7 (8th Cir. 2003).

Most reported cases consider appeal waivers that, like those in Wells and Holzer , apply to both conviction and sentence. But in cases where the appeal waiver is not specific, or only references the conviction, courts have held that appeals challenging the sentence or conditions of supervised release fall outside the appeal waiver and can proceed. See, e.g., Williams v. Indiana , 164 N.E.3d 724, 725 (Ind. 2021) (allowing the defendant to appeal his sentence where the appeal waiver did not specifically preclude it and noting that "the plea agreement, guilty plea and sentencing hearing colloquy, and sentencing order must: be clear and consistent as to whether the defendant waives only the right to appeal the conviction or the right to appeal the conviction and sentence"); Kansas v. Patton , 287 Kan. 200, 195 P.3d 753, 771 (2008) (declining to construe an appeal waiver as precluding an appeal of a sentencing decision where the waiver did not explicitly refer to the sentence); cf. Garza , 586 U.S. at –––– & n.5, 139 S. Ct. at 744 & n.5 (citing Patton and referencing other examples of appeal waivers that allowed challenges to the sentence); United States v. Pam , 867 F.3d 1191, 1201 (10th Cir. 2017) (holding that a waiver of collateral attack to the conviction does not include attacks on the sentence), abrogated on other grounds by Borden v. United States , ––– U.S. ––––, 141 S. Ct. 1817, 210 L.Ed.2d 63 (2021). And this is only fair. Given the difference in meaning between "conviction" and "sentence," a defendant signing an agreement that waives the right to appeal the conviction would not logically understand it to preclude appeal of probation conditions imposed later, at time of...