IN THE SUPREME COURT OF THE STATE OF NEVADA
SCOTT WILLIAM COCHRAN, No. 79721
Appellant,
VS.
THE STATE OF NEVADA, FIL
Respondent.
SEP 1 8 2010
ELiZAR titN.:V1.1
CLERK OF UPREW.2 •LOLIRT
EY
DEP TY CLERK
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying a motion
to withdraw a guilty plea. Eighth Judicial District Court, Clark County;
Ronald J. Israel, Judge.
Appellant was originally charged with coercion, first-degree
kidnapping, battery with intent to commit a crime, and four counts of sexual
assault. Approximately a month after his arrest, appellant entered a guilty
plea to two counts of attempted sexual assault. The district court sentenced
appellant to serve two concurrent terms of two to ten years. The judgment
of conviction was entered on March 29, 2012. Appellant was discharged in
2017.
On May 3, 2019, seven years after entry of the judgment of
conviction, appellant filed a motion to withdraw his guilty plea. Appellant
claimed that he is innocent and that he has discovered new evidence that
would "prove that the only witness in the case against him was vindictive,
dishonest, and had a pattern of being violent and crafting schemes for
money and vengeance." This new evidence includes: (1) an affidavit from
appellant's ex-girlfriend stating that the victim had contacted her several
times and asked questions about appellant's finances and sexual
SUPREME COURT
OF preferences; (2) the victim being charged in 2016 with murder and her
NEVADA
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attempt to create an alibi for the murder offense; (3) the investigation into
the victim's husband's death has been re-opened; (4) a statement from the
victim's former brother-in-law to an investigator that the victim had filed
false police reports against his brother claiming physical abuse; (5) a
statement from the victim's former fiancé to an investigator that the victim
was volatile and manipulative and previously tried to run him over, which
led to her arrest for domestic battery; (6) questionable civil claims against
various entities filed by the victim for financial gain; (7) the victim's false
reports of harassment against appellant, his mother and his ex-girlfriend;
(8) appellant's polygraph results; and (9) appellant's self-serving statements
that sex with the victim was consensual and that the victim faked her own
injuries and ripped his shirt to frame him. Appellant asserts that he only
pleaded guilty because he was afraid of the risk of being convicted of more
serious charges. Appellant asserted he only discovered the new evidence
when he hired an investigator after he learned he would have to register as
a sex offender for life. The district court denied the motion without an
evidentiary hearing.
Appellant argues the district court erred in determining that
his motion should have been filed as a postconviction petition for a writ of
habeas corpus. We agree. Because appellant was not in custody when he
filed his motion, a postconviction petition for a writ of habeas corpus was
not an available remedy. See Nev. Const. art. 6, § 6(1) (setting forth a
custody requirement for habeas corpus); NRS 34.724(1) (providing that a
habeas petition is available to a person under a sentence of imprisonment
or death); Harris v. State,
, 622 n.1
(2014) (noting that the exclusive-remedy provision in NRS 34.724(2) does
not apply to remedies that are available only to those not in custody);
Trujillo v. State,
(2013) CFor a person
2
who is not in custody, Nevada's post-conviction habeas corpus scheme does
not apply. . . Conversely, if a person is in custody on the conviction being
challenged . . . habeas corpus must be sought as the exclusive rernedy to
challenge the conviction.").
Nevertheless, we affirm the district court's order because
appellant's claim of innocence is not properly raised in a post-sentence
motion to withdraw a guilty plea. "The question of an accused's guilt or
innocence is generally not at issue in a motion to withdraw a guilty plea."
Hargrove v. State,
(1927) (recognizing that a
post-sentence motion to withdraw a plea "does not involve any question of
guilt or innocence"). A claim of actual innocence therefore would not
warrant relief under NRS 176.165 from an otherwise knowing, intelligent,
and voluntary plea. And appellant has not argued nor carried his burden
of demonstrating that his plea was not entered knowingly, intelligently, and
voluntarily. Bryant v. State,
(1986).1
Accordingly, we
ORDER the ju ent of the district court AFFIRMED.
Parraguirre
AA* J. , J.
Hardesty Cadish
'We need not reach appellant's argument that he satisfied the
requirements of NRS 34.724(3) in light of our decision today.
We further note that a convicted person may file a petition to
establish factual innocence pursuant to NRS 34.960. We express no opinion
as to whether appellant can satisfy the procedural requirements for such a
petition.
3
cc: Hon. Ronald J. Israel, District Judge
The Law Office of Kristina Wildeveld & Associates
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
