ROY FRANZ TRIGUEROS v. THE STATE OF NEVADA (2025)

ORDER OF AFFIRMANCE

Roy Franz Trigueros appeals from a judgment of conviction, entered pursuant to a no contest plea,¹ of possession of drugs which may not be introduced in interstate commerce. Eighth Judicial District Court, Clark County; Mary Kay Holthus, Judge.²

On appeal, Trigueros argues he did not validly enter a plea and that both the district court's plea canvass and Faretta ³ canvass were insufficient, and therefore his judgment of conviction should be reversed.

Trigueros was initially charged with three felony counts: transport of a controlled substance, possession of a controlled substance with intent to sell, and possession of a controlled substance. At his initial arraignment, he indicated that he wanted to represent himself, and the district court encouraged him to avail himself of the representation provided by the public defender's office, but the court also allowed him 30 days to decide. At the next status check, Trigueros maintained that he wanted to represent himself, and the court conducted a Faretta canvass. During the canvass, the State requested the opportunity to make a record of the charges and the potential sentences for each offense, which the court permitted. Ultimately, the court granted Trigueros’ request to represent himself and appointed standby counsel, who was present during plea negotiations.

At a hearing to address several of Trigueros’ pretrial motions, the State offered a “one-time deal” which would allow Trigueros to plead no contest to two misdemeanors, instead of proceeding to a jury trial on the three felony counts. With respect to the proposed plea deal, Trigueros expressed concern about the charge of doing business without a license because he ‘wasn't doing any business.” After further negotiations, the State agreed to allow Trigueros to plead guilty to a single count of possession of drugs which may not be introduced into interstate commerce—a misdemeanor—and to exclude Trigueros’ cell phone from the forfeiture. Trigueros also expressed concern about being charged with trafficking, and the State confirmed that he would not be pleading to a trafficking charge. The plea offer was made orally at the hearing, and Trigueros did not enter into a written plea agreement.⁴ Following negotiations, he agreed to plead to one misdemeanor count. The district court asked Trigueros, and he confirmed for the court, that he was making the plea “freely and voluntarily.”

Standby counsel requested that the district court accept the plea to avoid remanding the case to justice court for acceptance of the misdemeanor plea. Trigueros agreed, and the court accepted his plea, gave him credit for time served, and closed the case. Trigueros filed his direct appeal from the judgment of conviction on the misdemeanor charge, challenging the validity of both the plea canvass and the Faretta canvass. We address Trigueros’ challenges below.

As a preliminary matter, Trigueros does not claim that he previously raised a challenge to the validity of his plea in the district court and was denied relief.⁵ Further, this court generally will not consider a challenge to the validity of a guilty plea on direct appeal from a judgment of conviction, unless an error appears clear from the record. See Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 367-68 (1986), as limited by Smith v. State, 110 Nev. 1009, 1010 n.1, 879 P.2d 60, 61 n.1 (1994) (providing an exception to the rule announced in Bryant where the error clearly appears from the record). We also note that Trigueros did not request in his opening brief that we engage in plain error review of the validity of his plea on appeal.⁶ See Jeremias v. State, 134 Nev. 46, 52, 412 P.3d 43, 49 (2018) (recognizing “the decision whether to correct a forfeited error is discretionary”). Even if we were to review the record for plain error, the validity of a plea is determined from the record as a whole. See Heffley v. Warden, 89 Nev. 573, 574-75, 516 P.2d 1403, 1404 (1973) (recognizing the validity of a guilty plea is not determined from the plea canvass alone but from the record as a whole). For these reasons, we decline to address this claim on appeal in the first instance.

Trigueros next argues he did not validly waive his right to counsel because the district court's Faretta canvass was insufficient. The Sixth Amendment provides a criminal defendant with the right to counsel, but a defendant may waive this right and represent himself if this waiver is knowing, intelligent, and voluntary. Miles v. State, 137 Nev. 747, 749-50, 500 P.3d 1263, 1268 (2021); Faretta v. California, 422 U.S. 806, 834-35 (1975). For the waiver to be knowing and intelligent, the defendant must “be made aware of the dangers and disadvantages of self-representation.” Faretta, 422 U.S. at 835. The record must “establish that he knows what he is doing and his choice is made with eyes open.” Id. (internal quotation marks omitted). A defendant may waive his right to counsel even if he lacks legal skills and experience, and a district court may not deny a defendant his right to self-representation because he may ultimately conduct his own defense to his own detriment. Id. at 834-36. This court gives “deference to the district court's decision to allow the defendant to waive his right to counsel.” Hooks v. State, 124 Nev. 48, 55, 176 P.3d 1081, 1085 (2008).

The district court canvassed Trigueros twice: once at Trigueros’ initial arraignment hearing, and once at a status check approximately 30 days later. During these hearings, the district court inquired into the areas suggested under Supreme Court Rule (SCR) 253. In particular, the district court informed Trigueros that (1) it is “almost always” unwise for a defendant to represent himself and that doing so may be to his “severe” detriment; (2) he must know and comply with the same procedural rules as the lawyers and the court would not help him with these rules; (3) if he is convicted, he cannot complain thereafter that he was ineffective in representing himself; (4) the State would be represented by an experienced, professional attorney who would give him no breaks because he does not have the skills and experience of a professional; (5) he would not be given any special privileges in court or special library privileges in jail should he end up in jail; (6) criminal trials can present difficult choices as to strategy and tactics that he was not trained to make; and (7) the effectiveness of his defense may be diminished by his dual role as attorney and accused. See SCR 253(2).

The district court also canvassed Trigueros regarding his age (34-35 years old); his education (high school); his literacy (can read, write, and understand English); his prior experience and familiarity with legal proceedings (none);⁷ whether any medical or mental health conditions affected his ability to represent himself (no); whether he had been coerced or threatened by anyone to waive his right to counsel (no); whether he understood he had a right to representation at no cost if he was unable to pay (yes); whether he understood the elements of the crimes (no); whether he understood the possible penalties (no); whether he understood the defenses he may have (yes); whether he understood standby counsel would be appointed to represent him in the event he chooses to abandon his right to self-representation (yes); and the time to file an appeal (thirty days). See SCR 253(3).

Although Trigueros stated he did not know the elements of the crimes charged or the potential penalties he faced, the district court permitted the State to make a record of this information.⁸ Thereafter, the district court asked Trigueros if he understood, and Trigueros stated he did. Cf. Miles, 137 Nev. at 753, 500 P.3d at 1270 (“We stress that the trial court was not obligated to delve into the elements of the charged crimes, but once it did, that inquiry revealed that [the defendant] did not understand the sex trafficking charge and thus may not have appreciated the disadvantages of self-representation.” (internal citation omitted)); Hooks, 124 Nev. at 57, 176 P.3d at 1086 (“And of particular significance in this case, it does not appear that [the defendant] understood the potential sentence when he chose to represent himself”).

After review, we conclude the district court made a “specific, penetrating and comprehensive inquiry of the defendant to determine whether the defendant understands the consequences of his ․ decision to proceed without counsel,” see SCR 253(1), and reasonably concluded Trigueros’ waiver was knowingly, intelligently, and voluntarily made. Although Trigueros asserts that his answers or the record indicate he did not have certain foundational knowledge or fully understand aspects of trial proceedings, those issues reflect upon his ability to represent himself, not his right to represent himself. See Miles, 137 Nev. at 752, 500 P.3d at 1270 (“A Faretta canvass is not a law school exam that the defendant must pass or be denied the right to represent oneself ․”). Accordingly, we conclude the district court did not err by allowing Trigueros to represent himself, and we

ORDER the judgment of conviction AFFIRMED.

Bulla, C.J.

Gibbons, J.

Dougla, Sr.J.

FOOTNOTES

1.   We note that a no contest plea is equivalent to a guilty plea insofar as how the court treats a defendant. State v. Lewis, 124 Nev. 132, 133 n.1, 178 P.3d 146, 147 n.1 (2008), overruled on other grounds by State v. Harris, 131 Nev. 551, 556, 355 P.3d 791, 793-94 (2015).

2.   The Honorable Deborah L. Westbrook did not participate in the decision in this matter. The Honorable Michael L. Douglas, Senior Justice, participated in the decision of this matter under the order of assignment entered on September 30, 2025.

3.   Faretta v. California, 422 U.S. 806 (1975).

4.   Although a written plea agreement is not required for a misdemeanor offense, see NRS 174.035(8), we take this opportunity to underscore for the State and the district court the overall benefit of using a written plea agreement versus accepting an oral one when a defendant is charged with a felony in district court but pleads to a non-felony offense, because a written agreement helps protect a defendant's rights and the record by requiring a written acknowledgement from the defendant that they are making their plea voluntarily and with the understanding of the nature of the charge or charges, the consequences of the plea, and a waiver of constitutional rights, as prescribed in NRS 174.063.

5.   To the extent Trigueros contends he could not challenge his plea by filing a postconviction habeas petition because he is not in custody in this matter, he does not dispute the State's argument that he could pursue his claims by filing a motion to withdraw plea pursuant to NRS 34.724(3). See Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986) (stating, “a defendant must raise a challenge to the validity of his or her guilty plea in the district court in the first instance, either by bringing a motion to withdraw the guilty plea, or by initiating a post-conviction proceeding ․”). Therefore, Trigueros effectively concedes this point on appeal. See Colton v. Murphy, 71 Nev. 71, 72, 279 P.2d 1036, 1036 (1955) (concluding that when respondents’ argument was not addressed in appellants’ opening brief, and appellants declined to address the argument in a reply brief, “such lack of challenge cannot be regarded as unwitting and in our view constitutes a clear concession by appellants that there is merit in respondents’ position”).

6.   To the extent Trigueros argues plain error for the first time in his reply brief, we need not consider it. See LaChance v. State, 130 Nev. 263, 277 n.7, 321 P.3d 919, 929 n.7 (2014).

7.   We note that Trigueros represented himself at his preliminary hearing and participated in the cross-examination of two witnesses.

8.   We caution the district court that, although it need not educate a defendant on how to effectively represent themself, it must ensure the defendant makes their decision “with eyes open as to [the] disadvantages” and that they do not “act[ ] on incorrect information.” Miles, 137 Nev. at 752-53, 500 P.3d at 1270.