MCGUIRE v. STATE (2026)

ORDER OF AFFIRMANCE

McGuire claims the district court abused its discretion by denying a presentence motion to withdraw his guilty plea. A defendant may move to withdraw a guilty plea before sentencing, NRS 176.165, and “a district court may grant a defendant's motion to withdraw his guilty plea before sentencing for any reason where permitting withdrawal would be fair and just,” Stevenson v. State, 131 Nev. 598, 604, 354 P.3d 1277, 1281 (2015). We give deference to the district court's factual findings if they are supported by the record, id., and review the district court's decision on a motion to withdraw a guilty plea for an abuse of discretion, Molina v. State, 120 Nev. 185, 191, 87 P.3d 533, 538 (2004).

In his motion to withdraw his guilty plea, McGuire first argued he should be permitted to withdraw his guilty plea because of ineffective assistance of counsel. Specifically, McGuire claimed his counsel was ineffective because counsel failed to correct the omission of a 2015 Wyoming conviction from the presentence investigation report (PSI) prepared in advance of McGuire's original 2021 sentencing hearing, thereby making his original sentencing structure inaccurate. The district court rejected this as a basis for withdrawal of the guilty plea because any errors in the 2021 PSI were corrected in a supplemental PSI. The record supports the district court's conclusion. In a pro se “motion for modification of sentence, motion to withdraw plea/suspend sentence,” McGuire notified the district court that the 2021 PSI omitted a 2015 Wyoming conviction for felony interference with a peace officer. The district court found the omission of the 2015 Wyoming conviction rendered McGuire's sentence improper, set aside the judgment of conviction, ordered the Division of Parole and Probation to prepare a supplemental PSI. and appointed McGuire counsel for re-sentencing. The district court therefore did not abuse its discretion in finding that the omission of the 2015 Wyoming conviction from the original PSI did not present a fair and just reason for permitting McGuire to withdraw his guilty plea.

McGuire further argued he should be permitted to withdraw his guilty plea because his counsel coerced him into pleading guilty by wrongly advising him to accept a guilty plea to avoid habitual criminal treatment. The gravamen of McGuire's argument was that counsel's performance was deficient because McGuire did not have the requisite number of felony convictions to make him eligible for habitual criminal adjudication. At the time of the offense here, NRS 207.010(1)(a) and (b) provided that a person was eligible for habitual criminal adjudication if they had previously been convicted of either two or three prior felonies. See 2009 Nev. Stat., ch. 156, § 1, at 567. The supplemental PSI reflects that, prior to the instant conviction, McGuire had sustained felony convictions in four cases in Wyoming and one case in Nevada, thereby making him subject to potential habitual criminal treatment. See State v. Second Jud. Dist. Ct. (Pullin), 124 Nev. 564, 567, 188 P.3d 1079, 1081 (2008) (“[T]he proper penalty is the penalty in effect at the time of the commission of the offense ․”). Furthermore, McGuire acknowledged in his plea agreement that he was not acting under duress or coercion in executing the agreement.¹ Accordingly, we conclude the district court did not abuse its discretion in denying McGuire's motion to withdraw his guilty plea. See Rubio v. State, 124 Nev. 1032, 1038, 194 P.3d 1224, 1228 (2008) (stating “a defendant may generally not repudiate [his] assertions, made in open court, that the plea is voluntary”).

Next, McGuire argues for the first time on appeal that the district court erred by not transferring him to Wyoming to serve his sentence on the 2015 Wyoming conviction after the expiration of his sentence for a 2009 Nevada conviction. McGuire did not raise this claim below, and he does not argue plain error on appeal. See Martinorellan v. State, 131 Nev. 43, 48, 343 P.3d 590, 593 (2015) (stating “all unpreserved errors are to be reviewed for plain error without regard as to whether they are of constitutional dimension”). Specifically, McGuire does not argue that any errors are “clear under current law from a casual inspection of the record.” Jeremias v. State, 134 Nev. 46, 50, 412 P.3d 43, 48 (2018). We thus conclude he has forfeited these claims, and we decline to review them on appeal. See id. at 52, 412 P.3d at 49 (“[T]he decision whether to correct a forfeited error is discretionary ․”); see also Miller v. State, 121 Nev. 92, 99, 110 P.3d 53, 58 (2005) (stating it is the appellant's burden to demonstrate plain error); State v. Eighth Jud. Dist. Ct. (Doane), 138 Nev. 896, 900, 521 P.3d 1215, 1221 (2022) (recognizing the Nevada appellate courts “follow the principle of party presentation” and thus “rely on the parties to frame the issues for decisions and assign to courts the role of neutral arbiter of matters the parties present” (quoting Greenlaw v. United States, 554 U.S. 237, 243 (2008))); Senjab v. Alhulaibi, 137 Nev. 632, 633-34, 497 P.3d 618, 619 (2021) (“We will not supply an argument on a party's behalf but review only the issues the parties present.”).

Finally, McGuire argues on appeal that the cumulative effect of the errors below warrants relief. McGuire has not demonstrated any errors to cumulate. Therefore, he is not entitled to relief on this claim. See Chaparro v. State, 137 Nev. 665, 673-74, 497 P.3d 1187, 1195 (2021) (holding a claim of cumulative error lacked merit where there were no errors to cumulate). For these reasons, we

ORDER the amended judgment of conviction AFFIRMED.

FOOTNOTES

1.   The district court also found that “[t]he extensive plea canvas[s] at the plea hearing clearly shows Defendant did not plead guilty under duress.” McGuire did not include a copy of the transcript from his change of plea hearing. Because McGuire did not include essential portions of the record for our review, he fails to demonstrate the district court erred in finding his plea was not the product of duress. See Greene v. State, 96 Nev. 555, 558, 612 P.2d 686, 688 (1980) (“The burden to make a proper appellate record rests on appellant.”); see also Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007) (“When an appellant fails to include necessary documentation in the record, we necessarily presume that the missing portion supports the district court's decision.”).