Here’s some breaking news: In the Andersen v. City of Las Vegas decision issued today the Nevada Supreme Court held that if you are charged with misdemeanor domestic violence, you have a right to a trial by jury. Up until today, these cases were decided by a judge – typically either in city courts like Las Vegas Municipal Court, or justice courts like Clark County Justice Court. The rationale for the decision chiefly rests on the fact if you are convicted of domestic violence, among other problems you lose your right to possess a firearm under a recent state law.
But this is mostly a post-conviction blog so here we are going to try and figure out what to do if you’ve been charged with, plead guilty to, or are facing charges of misdemeanor domestic violence in Nevada. Now, the Andersen decision is less than 24 hours old, so NO ONE really knows how this will all play out. But, if you’ve faced domestic violence charges in Nevada in the last five years you may have a lot of questions and, for educational purposes, here’s what some sides of the argument may look like.
Quick note about all this: The remedy in virtually any situation below is that if you exercise your right to a jury trial successfully, that’s all you’re getting: a possible jury trial on your charges. If you have a favorable plea agreement, you will want to consider if attempting to undo that agreement is in your best interest.
If you are currently facing misdemeanor domestic violence charges: This is probably the most straightforward scenario – almost certainly the Andersen decision applies to you and you have a right to a jury trial. If you’ve already pled and are awaiting sentencing, the decision still likely applies and it could be a basis to withdraw your plea although again, consider if you want the benefits of your deal or if you really want to go to a jury trial. If you’ve already BEEN sentenced on a domestic violence charge but less than thirty days have gone by since the date of conviction, the decision still probably applies to you and you may have a right to withdraw your plea or file an appeal.
If you were convicted of misdemeanor domestic violence prior to October 1, 2015: The most challenging cases in which to seek relief based on Andersen are those where the conviction was “final” (meaning, the time to file an appeal expired) before the law relied on in Andersen took effect. That date was October 1, 2015. Prior to that date, the law was fairly well-settled that there was no right to a jury trial in misdemeanor domestic violence cases. The right arguably arose with the passage of amended NRS 202.360 on October 1, 2015. Whether the Andersen decision will be given retroactive effect to closed cases is an extremely complicated question that will take time for courts to answer.
If you were convicted of misdemeanor domestic violence between October 1, 2015 and August 12, 2019:
The hardest cases to apply this decision to are those that arose after NRS 202.360 was amended but prior to thirty days before the Andersen decision. As noted above, if you were just recently convicted of domestic violence less than thirty days ago and want to assert the right to a jury trial, you should act immediately to do so! But what about people convicted after the new law went into effect but before Andersen was decided? This is an even more complex question than any posed above and the current procedural posture of your case can make a huge difference. Is your case final? Was there any appeal at all in your case? Is there still time to file a timely post-conviction petition? You really need to have your individual circumstance reviewed by an attorney to figure out what your best move is. Generally speaking, the more recent the conviction, the more options that are probably available.
Potential options are almost too many to list. It might be possible to assert that Andersen recognized a new and very important constitutional right. If that were successful, it may trigger a one year filing period from today in which to file a post-conviction petition asserting the right recognized in Andersen.
These questions are complicated and there aren’t any sure answers at this early stage. But we are following this development closely. Conviction Solutions is the place for post-conviction help in Las Vegas. Please feel free to contact us directly for help with your domestic violence or any other criminal case question.