Filed: ' Ourt K. I..%N - F

ORIGINAL
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IN THE SUPREME COURT OF THE STATE OF NEVADA
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DAVID SCHUBERT,
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Petitioner,
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vs.
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THE HONORABLE CAROLYN )
ELLS WORTH, Judge of the Eighth Judicial )
District Court of the State of Nevada in and )
For the County of Clark, )
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Respondent.
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Case No.
6900
FILED
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APPLICATION FOR WRIT OF MANDAMUS OR, IN THE ALTERNATIVE,
FOR WRIT OF PROHIBITION AND REQUEST FOR EMERGENCY
CONSIDERATION
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WILLIAM B. TERRY, ESQ.

WILLIAM B. TERRY, CHARTERED
530 South Seventh Street
Las Vegas, Nevada 89101
(701) 385-0799
(702) 385-9788 (Fax)
Info@WilliamTerryLaw.com
Attorneys for Petitioner,
DAVID SCHUBERT
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IN THE SUPREME COURT OF THE STATE OF NEVADA

DAVID SCHUBERT,
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Petitioner,
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vs.
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THE HONORABLE CAROLYN )
ELLS WORTH, Judge of the Eighth Judicial )
District Court of the State of Nevada in and )
For the County of Clark, )
)
Respondent.
)
)
Case No.
APPLICATION FOR WRIT OF MANDAMUS OR, IN THE ALTERNATIVE,

FOR WRIT OF PROHIBITION AND REQUEST FOR EMERGENCY
CONSIDERATION
COMES NOW, the Petitioner, DAVID SCHUBERT, by and through his counsel, WILLIAM
B. TERRY, ESQ., of the law offices of WILLIAM B. TERRY, CHARTERED and files the instant
Application for Writ of Mandamus or, in the Alternative, for Writ of Prohibition in the instant case.
Said request and said request for emergency treatment is set forth in the attached memorandum of
points and authorities.
I.
Statement of the Case
This is an Application for a Writ of Mandamus or, in the alternative, for a Writ of Prohibition
pursuant to NRS 34.160 and 34.320 wherein Petitioner states that he is a Defendant in that case
entitled State of Nevada vs. Schubert.
That on March 30, 2012, Chief Judge, the Honorable Jennifer P. Togliatti, denied Petitioner's
Motion to Recuse The Honorable Judge Carolyn Ellsworth and approved of all actions taken by
Judge Ellsworth independent of the motion to recuse Judge Ellsworth based upon actual bias and
prejudice. That as will be demonstrated herein there is no other adequate remedy at law particularly
in light of the fact that as a result of Judge Togliatti' s Order, Petitioner Schubert is set to surrender
in open court on April 9,2012, to commence serving his period of nine month incarceration as a
condition of probation.
The instant Petition arises before this Honorable Court as a result of the actions of the
Honorable Judge Carolyn Ellsworth in the instant case and as a result of the denial of the Motion to
Recuse by Judge Togliatti. On March 5, 2012, a Petition and Motion to Disqualify Judge was filed
in the Eighth Judicial District Court and as is the procedure ultimately was assigned to the Chief
Judge for further consideration. Judge Togliatti considered the Petition and Motion to Disqualify
the Honorable Carolyn Ellsworth and ultimately denied that motion. A copy of the Petition filed on
March 5, 2012, is attached hereto and incorporated by reference herein as Exhibit "1". The Court
will note that there is a detailed analysis of facts and affidavit by counsel William B. Terry in
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reference to the basis to disqualify Judge Ellsworth set forth within the Petition and Motion to
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Disqualify. Additionally, there are numerous exhibits which were attached to the Motion which
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were considered by Judge Togliatti. For purposes of summary only, the Petitioner will restate the
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statement of the case herein but this Honorable Court is asked to look to the Petition and Motion to
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Disqualify Judge Carolyn Ellsworth for a more detailed analysis of the facts. Petitioner Schubert was
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charged by the Attorney General's office with multiple offenses. Ultimately, a plea agreement was
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reached between the parties as set forth within the Guilty Plea Agreement attached to the Motion as
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Exhibit "A". The agreement entered into between Mr. Schubert and the Attorney General's office
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called for Mr. Schubert to enter a plea of guilty to the charge of Unlawful Possession of a Controlled
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Substance. The plea agreement continued that the State would not oppose a stayed adjudication and
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probation pursuant to NRS 453.3363 not to exceed three years with certain conditions. Again, this
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was a first offense possession of a controlled substance case where the Attorney General's office was
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recommending a deferred prosecution. The plea was accepted in the lower level and ultimately
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assigned to the Honorable Judge Carolyn Ellsworth. Initially, Judge Ellsworth determined that she
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might not accept the plea bargain. She directed the Attorney General's office to file points and
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authorities in support of the sentencing which they did as did the Petitioner herein. Both documents
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are attached as Exhibits "B" and "C" to the original Motion to Disqualify Judge Ellsworth. Also
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attached was the preliminary field test checklist which showed that Mr. Schubert possessed .01
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grams of Cocaine which was attached as Exhibit "D". Likewise, the report of the Department of
Parole and Probation recommended a deferred sentence and a copy of the relevant portion of the
Presentence Investigation Report was attached as Exhibit "E". Ultimately a hearing was held before
Judge Ellsworth and she determined that she would accept the resolution. She thereafter set a
sentencing date and on that date the matter proceeded to sentencing. The Court is therefore
reminded as to what the status of the matter was before Judge Ellsworth actually sentenced the
Petitioner herein. The Attorney General's office was recommending a deferred prosecution, the
Department of Parole and Probation was recommending a deferred prosecution and, obviously, the
Defendant was requesting a deferred prosecution. There is no question but that he had never been
in a criminal court before, had never been on parole, had never been on probation, and this was his
first criminal offense on a charge dealing with .01 grams of Cocaine. A copy of the Sentencing
transcript was attached as Exhibit "F" to the motion to recuse Judge Ellsworth. What was ultimately
argued before Judge Togliatti was that Judge Ellsworth demonstrated her actual bias and prejudice
as against Mr. Schubert in at least two instances during the sentencing procedure. As the transcript
points out Judge Ellsworth immediately adjudicated Mr. Schubert guilty of the felony offense. What
this meant is that any and all chances of a deferred prosecution were null and void due to the first
comment of Judge Ellsworth. As the transcript indicates this was before Mr. Schubert addressed the
Court, before counsel addressed the Court and before arguments were made in support of the request
for a deferred sentence. An additional situation likewise occurred before Judge Ellsworth even
pronounced her sentence in that the Marshal or Bailiff actually placed the handcuffs on Mr. Schubert
prior to Judge Ellsworth indicating that as part of her adjudication of guilt on the felony charge Mr.
Schubert would be placed in the Clark County Detention Center for a nine month period of time.
In effect, it was argued that the Marshal or Bailiff was aware prior to the actual pronouncement of
sentence that Mr. Schubert was going to be incarcerated. Defense counsel immediately brought that
to the attention of Judge Ellsworth and objected to the handcuffing of Mr. Schubert.
In conjunction to the Motion to Disqualify Judge Ellsworth based on actual bias and
prejudice a Motion for Stay of a Proceedings to Set Aside the Adjudication of Guilt or, in the
Alternative, to Stay the Adjudication of Guilt and a Motion to Stay Commencement of Incarceration
and for an Evidentiary Hearing on the Motion to Recuse was filed on March 6,2012. A copy of that
Motion is attached hereto and incorporated by reference herein as Exhibit "2". Independent of the
fact that on March 5, 2012, the Motion to Disqualify Judge Ellsworth had been filed, the matter was
set for hearing before Judge Ellsworth on March 9, 2012. It was in fact Judge Ellsworth who
considered the request for stay of all proceedings and the request for evidentiary hearing. There is
no doubt that Judge Ellsworth was aware that the motion to recuse her had been filed even at the
time that she considered the motion to stay. The reason for this is that on March 12, 2012, Judge
Ellsworth filed her counter-affidavit entitled Affidavit in Answer to Defendant's Motion to
Disqualify the Honorable Judge Carolyn Ellsworth consistent with the rules indicating that she had
no personal bias or prejudice. A copy of her counter-affidavit is attached hereto and incorporated
by reference herein as Exhibit "3". In her counter-affidavit she acknowledged that she placed Mr.
Schubert on probation as is mandatory under the statute but that she imposed a special condition "to
serve the first nine (9) months of probation in the Clark County Detention Center with credit for time
served of one (1) day." She also acknowledges that she had determined that the fact the State had
dismissed certain counts against Mr. Schubert was not an abuse of prosecutorial discretion as she
had originally felt. In paragraph 6 at page 4 of her Counter-Affidavit, Judge Ellsworth indicated:
I did not make the final decision regarding sentencing until I had
heard from Mr. Schubert and his counsel at the time of the sentencing
hearing...
It is respectfully suggested that this could not have been accurate. Absolutely nothing
happened at the sentencing hearing of what can be called a derogatory nature in reference to Mr.
Schubert. The Attorney General's office as the plea negotiation memorandum called for
recommended a deferred prosecution. The Department of Parole and Probation recommended a
deferred prosecution and certainly the defense recommended a deferred prosecution. There were no
speakers to speak against Mr. Schubert. In other words, the transcript of the proceedings and the
attachments show that there was nothing at the time of sentencing to have convinced Judge Ellsworth
that she should adjudicate the Defendant and incarcerate him.
Also important to note is that while Judge Ellsworth's Affidavit does address the situation
with the Marshal and the cuffing of Mr. Schubert, it is void of any representations in reference to
why she initially adjudicated Mr. Schubert before entertaining arguments for sentencing. It is
submitted that in light of her non-responsiveness to this most specific allegation that the motion to
recuse for bias and prejudice should have been granted. Judge Ellsworth had an opportunity to
respond to the motion to recuse her and she did so but she did not address in any way why she
adjudicated Mr. Schubert before allowing Mr. Schubert and counsel to address her. The sentencing
provisions set forth under the Nevada Revised Statute and specifically NRS 176.015 provide for the
procedures when a sentence is to occur. That provision provides in part as follows:
2. Before imposing sentence, the court shall:
(a) Afford counsel an opportunity to speak on behalf of the
defendant; and
(b) Address the defendant personally and ask the defendant if:
(1) The defendant wishes to make a statement in his or her own
behalf and to present any information in mitigation of punishment;
The Court's attention is drawn to the fact that this statute is termed in mandatory terms with
the utilization of the word "shall". The transcript of the sentencing proceeding clearly show that any
address upon Judge Ellsworth would have fallen on deaf ears. At page 2 of the sentencing transcript
the following dialogue occurs after the Court asks if there is any illegal cause or reason why
sentencing could not proceed:
MR. TERRY:
MR. GOVER:
THE COURT:
Not on our behalf, Your Honor. Good

morning, William Terry appearing, Your
Honor, with Mr. Schubert.
None from the State, Your Honor.
All right by virtue of your plea of guilty int his
case to the crime of unlawful possession of a
controlled substance, not for the purpose of
sale, a felony, I hereby adjudge you guilty of
that offense, and State, did you want to say
anything?
This Honorable Court is respectfully reminded that all parties had recommended what is
commonly referred to as NRS 453.3363 treatment which would have called for a non-adjudication
of guilt on a deferred sentence. The above indicated portion of the transcript clearly shows an
adjudication of guilt before allowing any party to address the Court. It was only when counsel for
Mr. Schubert had an opportunity to address the Court did he bring it to the Court's attention as
follows:
MR. TERRY:
Your Honor, before I address the Court, I

noted that when you started the proceedings,

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you adjudicated my client guilty of a felony.

And that causes me concern because I haven't
addressed the Court yet...
See, sentencing transcript at pages 2 and 3.
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Again, Judge Ellsworth in her counter-affidavit never even addressed this.
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Before turning to Judge Togliatti's denial of the motion to recuse it is important to note that
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part of the motion to recuse was a request for an evidentiary hearing. Judge Togliatti ultimately
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denied that portion of the motion to recuse also.
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In Judge Togliatti's Order Denying Defendant's Motion to Disqualify Judge Carolyn
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Ellsworth she recognized the statutory and case law filed by Defendant Schubert showing that Judge
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Ellsworth had actual bias and prejudice. A copy of that Order is attached hereto and incorporated by
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reference herein as Exhibit "4". In doing this she recognized the holding in Cameron v. State, 114
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Nev. 1281, 1283, 968 P.2d 1169 (1998) where the Nevada Supreme Court held:
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Remarks of a judge made in the context of a court proceeding are not

considered indicative of improper bias or prejudice unless they show
that the judge has closed his or her minds to the presentation of all the
evidence...
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This is precisely what Mr. Schubert was arguing before Judge Togliatti and what it is
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suggested that the transcript of the sentencing procedure of Judge Ellsworth shows. She had closed
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her mind to any presentation of any evidence. Judge Togliatti also recognized that Judge Ellsworth
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never addressed herself to the issue of the adjudication of guilt where at page 2 of her Order she
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acknowledges "While not specifically addressed by Judge Ellsworth in her affidavit, the transcript
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of the sentencing provides some context for this Court regarding the adjudication of the Defendant
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at the start of the sentencing..."
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It is respectfully submitted again that Judge Ellsworth never even addressed this in her
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counter-affidavit and that had not Mr. Schubert's attorney brought the error to the Judge's attention
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the adjudication of guilt would have stood before any argument. Again, it is suggested that
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consistent with Cameron cited above, Judge Ellsworth "...closed his or her mind to the presentation
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of all the evidence." Judge Togliatti found that the actions of Judge Ellsworth adjudication of the
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Defendant "...was as a result of habit.. .and not as a result of Judge Ellsworth closing her mind to the
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presentation of evidence." It is respectfully submitted that Judge Togliatti's decision is not
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supported by any fact nor hearing. She denied the motion for evidentiary hearing and Judge
Ellsworth's affidavit did not contest the fact that she adjudicated the Defendant guilty prior to the
time that she heard any time of sentencing argument.
Facts
It is submitted that the facts are adequately set forth within the Statement of the Case and
within the attached documentation.
Statement of the Issues

1.
Whether a Writ of Prohibition, or in the alternative, a Writ of Mandamus is the proper
means to be utilized in addressing actual bias and prejudice and a motion to recuse a District Court
Judge.
2.
Whether or not this Honorable Court will grant both emergency relief and ultimate
relief
IV.
Statement of the Relief Sought
The following relief is sought by this Honorable Court:
1.
That the Honorable Judge Carolyn Ellsworth be recused from further consideration
of any matter in the instant case;

2.
That this Honorable Court issue a stay of all further proceeding including the
surrender date of April 9, 2012, when Mr. Schubert has been directed to appear in court and
surrender for purposes of commencing his nine month period of incarceration; and
3.
That the sentence imposed on the Petitioner both be stayed pending relief by this
Honorable Court and, ultimately, that the sentence imposed be vacated and the matter returned to
District Court before a different court judge for purposes of sentencing.

V.
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Statement of Reasons Why the Writ of Prohibition, or in the

Alternative Writ of Mandamus Should Issue
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A.
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A WRIT OF MANDAMUS WHILE AN EXTRAORDINARY REMEDY HAS BEEN

DETERMINED BY THE NEVADA SUPREME COURT TO BE AN APPROPRIATE
VEHICLE TO SEEK DISQUALIFICATION OF A JUDGE.
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In Towbin Dodge v. Eighth Judicial District Court of the State of Nevada in and for the
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County of Clark and the Honorable Kathy A. Hardcastle, this Honorable Court held specifically that
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a writ of mandamus although an extraordinary remedy is the appropriate vehicle to seek
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disqualification of a judge. In Towbin, as in the case at bar, a petition had been filed to recuse the
judge in finding that the writ of mandamus was the proper procedure to raise this issue before the
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Nevada Supreme Court this Honorable Court held as follows:
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A writ of mandamus is available to compel the performance of an act
that the law requires as a duty resulting from a office, trust, or station
or to control an arbitrary or capricious exercise of discretion...
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We have previously noted that a Petition for a Writ of Mandamus is

the appropriate vehicle to seek disqualification of a judge.
(Citations omitted).
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It is therefore respectfully suggested that while discretionary in nature, mandamus and

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prohibition are the proper means to raise this issue at this time before this Honorable Court. This
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is particularly true because the Petitioner, as in Towbin, had no other adequate plain and speedy
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opportunity for relief. If this Court does not grant action he will commence his sentence on April
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9, 2012.
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B.
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THE PETITIONER HEREIN HAS DEMONSTRATED ACTUAL BIAS AND PREJUDICE

AGAINST THE HONORABLE JUDGE CAROLYN ELLS WORTH AND THE MOTION TO
DISQUALIFY SHOULD HAVE BEEN GRANTED OR ALTERNATIVELY JUDGE
TOGLIATTI SHOULD HAVE SET AN EVIDENTIARY HEARING AS REQUESTED.
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The Petitioner herein relies upon the original points and authorities and all the documents
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attached hereto in support of his position that Judge Ellsworth should have disqualified herself. She
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originally questioned the validity of the plea bargain and then indicated she would accept the plea
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bargain and then adjudicated the Defendant guilty of the offense and ordered him incarcerated.
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Under the applicable sentencing standards for a straight first time offense possession of controlled
substance probation is mandatory even if the court adjudicates him guilty of the felony. In this case
without hearing from counsel, without hearing from Mr. Schubert, without hearing from the Attorney
General's office and without hearing what the Department of Parole and Probation recommended,
Judge Ellsworth adjudicated Mr. Schubert guilty immediate of the felony eliminating any and all
possibility of a deferred prosecution. She thereafter ordered his incarceration. It is submitted that
the actions set forth herein show a clear actual bias and prejudice and that with great respect to Judge
Togliatti her decision to not recuse Judge Ellsworth was in error. The prayer for relief is specific in
the instant case being that Judge Ellsworth does not participate any further in the instant case and
that the surrender date of April 9, 2012, should be stayed at a minimum pending further decision by
this Honorable Court. It is further suggested that if the Court finds actual bias and prejudice any and
all sentencing procedures are void and thus should be reversed by this Honorable Court. In
concluding, the Petitioner submits that the sentencing arguments by Mr. Schubert, his counsel, and
the Attorney General were irrelevant as to Judge Ellsworth. The transcript shows she had made up
her mind before sentencing and as Cameron, supra indicates "closed.. .her mind to the presentation
of all the evidence." The actions of the Marshal in handcuffing Mr. Schubert prior to the order of
incarceration clearly show, at a minimum, that at least there is a reason to believe that this had been
orchestrated prior to the time of any sentencing argument.
WILLIAM B. TERRY, RSQ

Nevada Bar No. 0010S
Attorneys for Petitioner
VERIFICATION
STATE OF NEVADA
) ss:
COUNTY OF CLARK
WILLIAM B. TERRY, being first duly sworn according to law, upon oath, deposes and says:
That he is the attorney for the Petitioner, DAVID SCHUBERT, in the above-entitled action;
that affiant has read the foregoing Application for Writ of Mandamus, or in the Alternative, Writ of
Prohibition and Request for Emergency Consideration, and knows the contents thereof, and that
same is true of his own knowledge, except as to those matters therein alleged on information and
belief, and as to those matters, he believes them to be true.
WILLIAM B. TERI
SUBSCRIB4D AND SWORN. to before
me this 3r4 day of pril, 2G:
NOTARY PUBLIC in and for said

County and State
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CERTIFICATE OF MAILING
The undersigned hereby certifies that on the
314'
day of April, 2012, I placed a true and
correct copy of the APPLICATION FOR WRIT OF MANDAMUS OR, IN THE

ALTERNATIVE, FOR WRIT OF PROHIBITION AND REQUEST FOR EMERGENCY
CONSIDERATION into an envelope which was placed in the United States Mail, postage fully
prepaid thereon, addressed as follows:

Clark County District Attorney
200 S. Lewis Avenue
The Honorable Carolyn Ellsworth
Eighth Judicial District Court
Department V
200 S. Lewis Avenue
Thom Gover, Esq.
Senior Deputy Attorney General
555 E. Washington Avenue, #3900
tTe-mployee of William B. Te
ered
Exhibit"

Nevada Bar No. 001028
(702) 385-0799
(702) 385-9788 (Fax)
Info(cfWilliamTerryLaw.corn
Attorney for Defendant
FD
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COURT
EIGHTH JUDICIAL DISTRICT COURT

CLARK COUNTY, NEVADA
IN RE: THE MATTER OF THE
RECUSAL OF THE HONORABLE
JUDGE CAROLYN ELLS WORTH
).7C7oc,
* PO 4- 4
"
PETITION AND MOTION TO DISQUALIFY JUDGE

COMES NOW the undersigned counsel WILLIAM B. TERRY, ESQ., of the law offices of
WILLIAM B. TERRY, CHARTERED for and on behalf of DAVID SCHUBERT and moves that
this Honorable Court disqualify the Honorable Carolyn Ellsworth based upon actual bias and
prejudice and alternatively based upon implied bias an prejudice and disqualify the Honorable Judge
Carolyn Ellsworth from further sitting on that case entitled State ofNevada vs. David Schubert, Case
No. C275700 currently pending in District Court, Department V.
This Motion and Petition is made and based upon the Affidavit of William B. Terry, Esq.
filed for and on behalf of David Schubert and any oral arguments as may be presented at the hearing
in this matter.
WILLIA : . T
Nevada Bar No. Oi i 8
STATUTORY PROCEDURES FOR DISQUALIFYING JUDGES OTHER THAN

SUPREME COURT JUSTICES
Under NRS 1.235 the following provisions are set forth:
Any party to an action or proceeding pending in any court other than

the supreme court who seeks to disqualify a judge for an actual or
implied bias or prejudice must file an affidavit specifying the facts
upon which the disqualification is sought. The affidavit of a party
presented by an attorney must be accompanied by a certificate of the
attorney of record that the affidavit is filed in good faith and not
interposed for delay...
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AFFIDAVIT SPECIFYING THE FACTS UPON WHICH THE DISQUALIFICATION

IS SOUGHT
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STATE OF NEVADA
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COUNTY OF CLARK
) ss
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WILLIAM B. TERRY, ESQ., being first duly sworn and states as follows:
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been so licensed since 1973.
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2.
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4.
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That your affiant has consulted with his client, David Schubert, who concurs in and has
directed counsel to file the instant motion to disqualify.
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That as attorney of record your affiant certifies that the affidavit is filed in good faith and not
interposed for delay.
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That your affiant is an attorney duly licensed to practice law in the State of Nevada having
That the instant case involves a case against Defendant David Schubert brought by the
Attorney General's office for the State of Nevada. Mr. Schubert was originally charged in
a multiple count complaint filed in Justice Court with amongst other charges Possession of
a Controlled Substance not for Purposes of Sale, a category E felony violation. Ultimately,
a plea agreement was reached between the parties as set forth within the attached Guilty Plea
Agreement designed herein as Exhibit "A". That agreement entered into by Mr. Schubert
and the Attorney General's office called for Mr. Schubert to enter a plea of guilty to the
charge of Unlawful Possession of a Controlled Substance not for Purposes of Sale. The plea
agreement continues that the State would not oppose a stayed adjudication and probation
pursuant to NRS 453.3363 not to exceed three years with the following conditions. Certain
2
conditions were thereafter set forth within the plea agreement which was signed by both Mr.
Schubert, his counsel and the Attorney General's office. The plea was accepted in what is
commonly referred to as te lower level and was originally assigned to Department III of
District Court. District Court, Department III, however, recused itself and the matter was
assigned the Honorable Judge Carolyn Ellsworth. Numerous court appearances occurred
before Judge Ellsworth and ultimately Judge Ellsworth determined that she might not accept
the plea bargain. She directed the Attorney General's office to file points and authorities in
support of the sentencing which they did. On January 20, 2012, they filed their "Points and
Authorities in Support of Sentencing" with attachments. A copy of that document is attached
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hereto and incorporated by reference herein as Exhibit "B". Likewise, the defense filed a
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"Memorandum of Points and Authorities in Support of Accepting the Resolution" as set forth
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in Exhibit "C" attached hereto. The defense had also received through discovery a copy of
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the "Preliminary Field Test Checklist and Results" in reference to the amount of controlled
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substance which Mr. Schubert possessed and it was found to be of a weight of .01 grams net.
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A copy of this Checklist is attached hereto and incorporated by reference herein as Exhibit
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"D". The report of the Department of Parole and Probation likewise recommended a
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deferred sentence and a copy of Page 4 of the Pre-Sentence Investigation Report is attached
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hereto and incorporated by reference herein as Exhibit "E". While not necessarily relevant
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to the instant motion during the course of the address by the defense to the Court the Court
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was given a copy of documents showing Mr. Schubert's progress in drug and alcohol
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counseling including having been involved in this counseling since close to the time of his
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original arrest.
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5.
The above was therefore the setting prior to the actual sentencing. The Attorney General's
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office was recommending a deferred prosecution, the Department of Parole and Probation
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was recommending a deferred prosecution and obviously the defense was recommending a
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deferred prosecution. The Court had questioned whether or not to accept the plea bargain
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in the first place but had not indicated in any way that she would deviate from the
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recommended sentence. The recommended sentence was the deferred prosecution and a
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period of probation with conditions.

6.
At a minimum, two things occurred at the time of sentencing which causes counsel and Mr.
Schubert to believe that Judge Ellsworth had an actual bias or prejudice against him. The
transcript attached hereto and incorporated by reference herein as Exhibit "F" referred to as
the "Sentencing Transcript" points these two items out. First, Judge Ellsworth immediately
adjudicates Mr. Schubert guilty of the felony. She did this without giving counsel or Mr.
Schubert an opportunity to address the Court. It is therefore respectfully suggested that any
address to the Court for purposes of sentencing would not have been considered by Judge
Ellsworth and was not considered by Judge Ellsworth. The second thing that occurred was
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the fact that the Marshal or Bailiff actually placed the handcuffs on Mr. Schubert prior to the
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time that any form of sentencing was complete. Counsel states herein that he has observed
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other sentencings in front of Judge Ellsworth. At no time has he seen the Marshal place the
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handcuffs on another individual until after the sentencing or close to after the sentencing has
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occurred. The transcript clearly makes it clear that Judge Ellsworth had not imposed the nine
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month incarceration until after the Bailiff was told was told to remove the handcuffs. At a
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minimum therefore it appears that "the writing was on the wall" in that the Bailiff was well
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aware what the Court was going to do and handcuffed Mr. Schubert on a mandatory
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probation case even though the Judge had adjudicated him guilty on the felony before she
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had imposed the nine month incarceration.
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7.
Based upon the instant affidavit it is submitted that the Honorable Judge Carolyn Ellsworth
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was actually biased or prejudiced against Mr. Schubert or, at a minimum, she was impliedly
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biased to such a degree that it superseded independent judicial review and independent
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determination of an appropriate sentence. In her sentencing, she referred to Mr. Schubert as
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having been a former deputy district attorney and having taken an oath to God. At page 7,
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she indicates that the plea bound the court to probation. It was not the plea that bound the
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court to probation but the Nevada Revised Statutes in that Category E felonies are mandatory
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probation. She also sentenced Mr. Schubert to a fixed term of probation of three years as
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opposed to what the Attorney General's office recommended which was a term "not to
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exceed three years..." Not only did it exceed what the Attorney General's office
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recommended but it submitted it violates certain provisions of the Nevada Revised Statutes
in that the Court cannot actually sentence an individual to a fixed term of three years
probation when the statutes themselves allow for good time credits for each month a
probationer is successfully on probation. The additional factor is that Judge Ellsworth gave
Mr. Schubert sixteen months on the low end of the sentencing provisions with nine months
of that sixteen month minimum to be spent in the Clark County Detention Center.
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SUBSCRIBED and SWOpi-W_tefore

fite.this5a,y-vf-klarch2,012.
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Y PUBL
SARAH DAMES
MY PUBLIC
STATE OF NEVADA
Ccorarnission Egife3: 100343
CoriticiaNoJNO64
THE INSTANT MOTION IS TIMELY

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The actual bias or prejudice demonstrated by Judge Ellsworth did not show itself till the date
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of sentencing. Even though she questioned the plea agreement at no time did she indicate that she
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would not follow the terms of the plea agreement. It was not till the time of sentencing as
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demonstrated by the Sentencing Transcript that the actual bias and prejudice arose and became
18
evident. The case is likewise still pending before Judge Ellsworth and Mr. Schubert is set to
fl
1 :7
surrender himself in open court on March 12, 2012. The Court should also be mindful that in
20
addressing the instant issue to disqualify that counsel has filed a Motion to Stay which has to be filed
21
before Judge Ellsworth. The Motion to Stay sets forth the basis of not proceeding further including
22
the existence of the instant motion to recuse a request for an evidentiary hearing as to whether or not
23
the Marshal was actually aware of what Judge Ellsworth sentence was going to be prior to the time
24
of the imposition of sentencing and the fact that Judge Ellsworth imposed what counsel classifies
25
as an illegal sentence by sentencing Mr. Schubert to a fixed term of probation. Again, the issue of
26
actual bias or prejudice did not occur and become obvious as counsel suggests until the imposition
27
28
of the sentence and the actions that occurred on the sentencing date. In the case of Towbin Dodge
v. Eighth Judicial District Court, 121 Nev. 251, 112 P.3d 1063(2005) the court considered the
timeliness of filing a petition to disqualify based on actual bias or prejudice. First of all, in Towbin
the court found that a petition for writ of mandamus is an appropriate vehicle to seek disqualification
of a judge. In Towbin at page 260 the court found in pertinent part as follows:
...Thus if new grounds for a judge's disqualification are discovered after the time limits in NRS
1.235(1) have passed then a party may file a motion to disqualify based on Canon 3(E) as soon as
possible after becoming aware of the new information. The motion must set forth facts and reasons
sufficient to cause a reasonable person to question the judge's impartiality and the challenged judge
may contradict the motion's allegations.. .thus the motion must be referred to another judge...
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1(1
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THE REMARKS AND THE ACTIONS OF JUDGE ELLS WORTH AT THE TIME OF
SENTENCING MAY BE CLEAR THAT THE JUDGE HAD CLOSED HER MIND TO
THE PRESENTATION OF EVIDENCE WHICH IS PROHIBITED BY THE CANONS
OF ETHICS AND THE NEVADA SUPREME COURT
In making the instant argument, this Honorable Court is referred to the case of Cameron v.
State, 114 Nev. 1281, 968 P.2d 1169 (1998). Cameron was a three to two decision that upheld the
sentencing of a district court judge of an individual. In Cameron the defendant had entered a guilty
plea to one count of lewdness with a minor under age of 14 and was sentenced to ten years in Nevada
State Prison. At the time of sentencing the judge made certain remarks which caused the defense
to appeal the sentence. The defendant argued in Cameron that the comments by the district judge
reflected a personal interest in the outcome of the case and improper judicial bias in violation of NRS
1.230 and Canon 3 of the Nevada Code of Judicial Conduct. He contended that the district judge
should have recused himself at the time of sentencing. It is important for this Court to note that in
Cameron the court recognized that there are grounds for disqualifying judges and most grounds
usually come in two different forms. One, where an allegation of actual bias or prejudice is asserted
and, two, when an implied bias exists. Under Subsection 1 of NRS 1.230 "a judge shall not act as
such in an action or proceeding when he entertains actual bias or prejudice for or against one of the
parties to the action." Under Subsection 2 being the implied bias provision it sets forth such things
as when the judge is a party to or interested in the action or is related to a party, etc. In Cameron the
27
28
Nevada Supreme Court pointed to Canon 3(B)(5) which states "a judge shall perform judicial duties
without bias or prejudice". In upholding the sentence in Cameron the court was mindful of
commenting on the sentencing judge's "remark". The instant case does not contain mere remarks
it contains actual actions by the district court judge, Judge Ellsworth. Those actions were the
adjudication of guilt without hearing from the parties and the Marshal's handcuffing of the
defendant. Those are actions as opposed to remarks. The defendant/petitioner herein has already
suggested that this was a preconceived plan. Continuing with the Cameron analysis, however, what
the court specifically held was the following:
8
9
10
11
12
13
In addition, remarks of a judge made in the context of a court

proceeding are not considered indicative of improper bias or
prejudice unless they show that the judge has closed his or her mind
to the presentation of all evidence...
The court then approvingly cited the following:
So long as a judge remains open-minded enough to refrain from
finally deciding a case until all of the evidence has been presented
remarks made by the judge during the course of the proceeding will
not be considered as indicative of disqualifying bias or prejudice...
14
The court in Cameron then affirmed the sentencing. Again, this was a three to two case that
15
commented on remarks not actions of a judge in the sentencing procedure. The dissent, however,
16
should also be looked at from the Cameron case. What the dissent was critical of was the fact that
17
"the district judge also ignored all the primary points to be considered at sentencing except for the
18
assessment of punishment. This sentence is excessive and unreliable and thus should be reversed."
19
The defense was also critical of the sentencing judge in Cameron because the judge rejected other
20
factors that should normally be considered in sentencing such as rehabilitation and the defendant's
21
potential future danger to society. The dissent also pointed to the fact that the Department of Parole
22
and Probation in Cameron did not feel that he was a threat to society and was a strong candidate for
23
rehabilitation. In the instant case, you had the Attorney General's specific recommendation and you
24
had the recommendation of the Department of Parole and Probation for a deferred prosecution.
25
Again, the dissent was critical in Cameron of the sentencing judge and indicated "the district judge
26
rejected this evidence and the division sentencing recommendations out of hand stating that 'we're
27
not concerned with rehabilitation we should be concerned about punishment." The dissent then
28
pointed out that Parole and Probation had pointed out that Mr. Cameron had never been convicted
7
of a felony and that the Department of Parole and Probation "never shrinks from recommending a
heavy sentence.. .bat recommended that Cameron receive a four year suspended sentence and be
granted probation."
Rule 2.11 provides in part that it is a judges responsibility to disqualify themselves in any
proceeding in which the judges impartiality might reasonably be questioned. With great respect to
Judge Ellsworth, her impartiality is being questioned. In Peta v. Bobby Berosini, Ltd ,111 Nev. 431,
894 P.2d 337 (1995) the court held that the standard for assessing judicial bias is "whether a
reasonable person knowing all the facts would harbor reasonable doubts about [a judges]
impartiality." Based upon this and the other matters filed herein there is little doubt that a reasonable
10
person knowing all the facts would harbor reasonable doubts about Judge Ellsworth's impartiality.
11
As such, Judge Ellsworth should be recused from further consideration of the case It is further
12
submitted that should Judge Ellsworth be recused that any and all actions conducted by her including
13
the sentence must be done anew by an unbiased and unprejudiced judge.
14
15
DATED this 5th day of March, 2012.

16
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20
WI I
. ' SQ.
TL asVegaS, 1\levada 89101
21
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25
26
27
28
8
Exhibit "A"
2
3
4
5
6
7
GPA
CATHERINE CORTEZ MASTO
Attorney General
THOM GOVER
Chief Deputy Attorney General
Nevada Bar No. 5648
Office of the Attorney General
555 E. Washington Ave., Ste. 3900
Las Vegas, Nevada 89101-1068
P: (702) 486-3120
F: (702) 486-2377
TGover@ag.nv.gov
Attorneys for State of Nevada
(7-1
DISTRICT COURT
10
THE STATE OF NEVADA,
11
Plaintiff,
12
8
I 13
8 7, E
z
17-a\i'EN
v.
DAVID SCHUBERT, ID# 0843303,
14
Defendant.
15
)
)
)
)
)
)
)
)
)
)
C4.1'&-..???,S(Ai
THE D:x3R-r
1;
Case No.: C-11-275700-1

Dept.
III
GUILTY PLEA AGREEMENT
16
- 17
THE STATE OF NEVADA, by CATHERINE CORTEZ MASTO, Attorney General, through
18
Thom Gover, Chief Deputy Attorney General, Special Prosecutions Division, and DAVID
19
SCHUBERT, with his attorney William B. Terry, Esq., submit the instant Guilty Plea Agreement:
20
I, DAVID SCHUBERT, agree to plead guilty to UNLAWFUL POSSESSION OF A
21
CONTROLLED SUBSTANCE NOT FOR THE PURPOSE OF SALE - (FIRST OFFENSE), a
22
category E felony, in violation of NRS 453.336(1) & (2)(A); as more fully alleged in the
23
Information attached as Exhibit 1.
24
My decision to plead guilty is based upon the following plea agreement:
25
1.
Upon the tender of my plea of guilty, the State will not oppose a stayed
26
adjudication and probation pursuant to NRS 453.3363, not to exceed three (3) years, with the
27
following conditions: a) complete 200 hours community service; b) attend and successfully
28
complete of a prograbf treatment and rehabilitation purant to NRS 453.580 and c) stay oi
of trouble.
2.
3
4
"Drug Court"), the State will not oppose Defendant David Schubert's request for assignment t
an appropriate facility for the treatment of abuse of alcohol or drugs which is certified by th
Division of Mental Health and Developmental Services of the Department of Health and Huma
Services with the added condition of frequent urinalysis to determine that the Defendant is nc
using a controlled substance.
3.
I, DAVID SCHUBERT, further agree to the forfeiture of any and all weapons or an
10
interest in any weapons seized and/or impounded in connection with the instant case and/or an
11
other case negotiated in whole or in part in conjunction with this plea agreement, including, In
12
not limited to: one (1) Glock 34, Serial Number MEP178.
4.
,gv. 13
c;
In lieu of assignment to the Eighth Judicial District Court program of treatment, (LE
I understand that if the State of Nevada has agreed to recommend or stipulate to ;
particular sentence or has agreed not to present argument regarding the sentence, or agree
not to oppose a particular sentence, any such agreement by the State is contingent upon rn
F. A
16
appearance in court on the initial sentencing date and any subsequent date if the sentencing
17
continued. I understand that if I fail to appear for the scheduled sentencing date or 1 commit ;
18
new criminal offense prior to sentencing the State of Nevada would regain the full right to argui
19 . 1 for any lawful sentence.
CONSEQUENCES OF THE PLEA
20
21
22
1, DAVID SCHUBERT, understand that by pleading guilty I admit the facts which suppor
all the elements of the offense to which I now plead as set forth in Exhibit 1.
23
I, DAVID SCHUBERT, understand that as a consequence of my plea of guilty I may bi
24
imprisoned for a period of not more than FOUR (4) years and not less than ONE (1) year and/o
25
impose a fine of not more than $5000.00. I also understand that the law requires me to pay ai
26
administrative assessment fee.
27
28
I understand that, if appropriate, I will be ordered to make restitution to the victim of th(
offenses to which I am pleading guilty.
I understand ilk I am eligible for probation for the nse to which I am pleading guilty
further understand that, except as otherwise provided by statute, the question of whethei
receive probation is in the discretion of the sentencing judge.
I understand that if more than one sentence of imprisonment is imposed and I am eligit
to serve the sentences concurrently, the sentencing judge has the discretion to order tl
sentences served concurrently or consecutively.
7
8
my sentence is to be determined by the court within the limits prescribed by statute.
understand that if my attorney or the State of Nevada or both recommend any speci
10
I have not been promised or guaranteed any particular sentence by anyone. I know th
punishment to the court, the court is not obligated to accept the recommendation.
11
I understand that if I am not a United States citizen, this criminal conviction will likE
12
result in serious negative immigration consequences including but not limited to: the remo\
13
from the United States through deportation; an inability to reenter the United States; the inabil
to gain United States citizenship or legal residency; and/or an indeterminate term
it) 15
3
L.71, 16
confinement, with the United States Federal Government based on my conviction al

immigration status.
- 17
18
19
20
WAIVER OF RIGHTS
By entering my plea of guilty, I, DAVID SCHUBERT, understand that I have waived ti
following rights and privileges:
1.
The constitutional privilege against self-incrimination, including the right to refui
21
to testify at trial, in which event the prosecution would not be allowed to comment to the ju
22
about my refusal to testify.
23
2.
The constitutional right to a speedy and public trial by an impartial jury, free
24
excessive pretrial publicity prejudicial to the defense, at which trial I would be entitled to tt
25
assistance of an attorney, either appointed or retained. At trial, the state would bear the burclE
26
of proving beyond a reasonable doubt each element of the offense charged.
27
28
3.
The constitutional right to confront and cross-examine any witnesses who wou
testify against me.
4.
The coOtutional right to subpoena witness(*) testify on my behalf.
5.
The constitutional right to testify in my own defense.
6.
The right to appeal the conviction, with the assistance of an attorney, eith
appointed or retained, unless the appeal is based upon reasonable constitutional, jurisdiction
or other grounds that challenge the legality of the proceedings and except as otherwise provid(
in NRS 174.035(3).
VOLUNTARINESS OF PLEA
7
8
I, DAVID SCHUBERT, have discussed the elements of all the original charges against n
with my attorney, William B. Terry, Esq., and I understand the nature of these charges again
10
me.
11
12
I understand that the State of Nevada would have to prove each element of the charge(
against me at trial.
.
I have discussed with my attorney any possible defenses and circumstances which mig
13
be in my favor.
E. 8
All of the foregoing elements, consequences, rights and waiver of rights have be
)15
t
E
2 3
thoroughly explained to me by my attorney, William B. Terry, Esq.
4.1
17
18
I believe that pleading guilty and accepting this plea bargain is in my best interest and th
a trial would be contrary to my best interest.
19
I am signing this agreement voluntarily, after consultation with my attorney and I am n
20
acting under duress or coercion or by virtue of any promises of leniency, except for those si
21
forth in this agreement.
22
I am not now under the influence of intoxicating liquor, a controlled substance or othl
23
drug which would in any manner impair my ability to comprehend or understand this agreemel
24
or the proceedings surrounding my entry of this plea.
25
/ / /
26
/ / /
27
/ / /
28
/ / /
1
2
3
My attorney answered all questions regardinitis guilty plea agreement and i .

consequences to my satisfaction and I am satisfied with the services provided by my attorney.
DATED this
day of September, 2011.
4
5
DAVID SCHUBERT
6
7
8
9
I have reviewed this matter and I concur that the disposition delineated above is a tru
10
and accurate representation of the negotiations entered into and agreed to by myself on behe
11
of the State of Nevada with the defendant, DAVID SCHUBERT, and his attorney, William E
12
Terry, Esq.
13
VERIFICATION OF COUNSEL
Agreed to on this1 iday of September, 2011.
14
15
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rtti,_
,v) ON>, 1-THOM GOVER Chief Deputy Attorney General
Special Prosecutions Division
555 E. Washington Ave., Suite 3900
(702) 486-3120
1
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2
3
4
5
6
7
8
CERTIFICATE OF DEFENSE ANSEL
I, the undersigned, as the attorney for the defendant DAVID SCHUBERT and as an
officer of the court hereby certify that:
1.
I have fully explained to DAVID SCHUBERT the allegations contained in the
charges to which the guilty plea is being entered.

2.
I have advised DAVID SCHUBERT of the penalties for each charge and the
restitution that the defendant may be ordered to pay.

3.
I have inquired of DAVID SCHUBERT facts concerning his immigration status and
explained to him that if he is not a United States citizen this criminal conviction will most likely
10
result in serious negative immigration consequences and/or impact his ability to become a
11
United States citizen and/or legal resident.
12
as
= 13
4.
All pleas of guilty offered by the defendant DAVID SCHUBERT pursuant to this
agreement are consistent with all the facts known to me and are made with my advice to DAVID
<
14
SCHUBERT and are in the best interest of DAVID SCHUBERT who:

(a)
>f 15
3;
16
pleading guilty as provided in this agreement.
- 17
18
19
20
21
Is competent and understands the charges and the consequences of
(b)
Executed this agreement and will enter all guilty pleas pursuant hereto
(c)
Was not under the influence of intoxicating liquor, a controlled substance or
voluntarily.
other drug at the time of the execution of this agreement.

DATED this
day of September, 2011.
22
23
24
William B. Terry, Esq.

DAVID SCHUBERT
25
26
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28
EXHIBIT 1
09/02/2011 11:09:52 AM
INFM
2 Attorney General
THOM GOVER
3 Chief Deputy Attorney General
Nevada Bar No. 5648
4 Office of the Attorney General
5 Las Vegas, Nevada 89101-1068
P: (702) 486-3120
6 F: (702) 486-2377
TGover@ag.nv.gov
7 Attorneys for State of Nevada
(LA. 09107111, 10:30 A.M.)
8
e A
CLERK OF THE COURT
DISTRICT COURT
10

12
.24-ft--
11
kg
)
)
)
)
)
)
)
)
)
)
Plaintiff,
13
v.
14
15
Defendant.
16
Dept. No.: Ill
INFORMATION
17
The undersigned, CATHERINE CORTEZ MASTO, Attorney General, by and through
18
n
u
rAqA Nn.: r-11-97570n-1
THrTh1
nrico , ChiU e f
acpuL
"
cy
Attorn ey
\Jul
pecial
Liu!
UIVIJIUI
'info
- "rs
rmsMrs
20
Honorable Court that the above named defendant, DAVID SCHUBERT, in the County of Clark,
21
State of Nevada, has committed the follow crime(s):
22
/ / /
23
/ / /
24
/ / /
25
/ / /
26
/ / /
27
/ / /
28
/ / /
COUNT I
UNLAWFUL POSSESSION OF A CONTROLLED SUBSTANCE

NOT FOR THE PURPOSE OF SALE - (First Offense)
3
4
5
On or about March 19, 2011, DAVID SHUBERT did knowingly or intentionally possess a
controlled substance without lawful authority, to wit: 0.09 grams, net weight, Cocaine, such
conduct being a first offense, an E felony, in violation of NRS 453.336(1) & (2)(a).
8
9
10
11
12
13
o
14
t ;
15
III
(NRS 453.336(1) & (2)(a) an E felony)
DATED this 2nd day of September, 2011.

Submitted by:
Attorney General
By: /s/ Thom Gover
THOM GOVER
3 -1
16
17
18
1A
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21
22
23
24
25
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27
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WITNESS LIST
In accordance with NRS 173.045(2), the following is the endorsement of names(s) of
such witness(es) known by the Office of the Attorney General at the time of the filing of this
Information:
1.
Jason S. Altnether, Forensic Scientist II, Las Vegas Metropolitan Police

Department, Forensic Laboratory, 5555 West Badura Avenue, Suite 1206, Las
Vegas, NV 89118.
2.
Officer S. Ferguson, P#8568, Las Vegas Metropolitan Police Department, 400 S.

Martin Luther King Blvd., Las Vegas, NV 89106.
3.
Officer D. Radich, P#9340, Las Vegas Metropolitan Police Department, 400 S.

4.
Officer B. Clarkson, P#8890, Las Vegas Metropolitan Police Department, 400 S.

5.
Detective R. nchsAnhirt, P#5418, Las Vegas Metropolitan Police Department, 400

S. Martin Luther King Blvd., Las Vegas, NV 89106.
6
7
8
9
10
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12
u
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Si& 15
tI
E
o
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1C
I
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Las Vegas Justice Court Dept. 3

Case #11F05144X
Exhibit "B"
1
2
3
4
5
6
7
PTAT
Attorney General
THOM GOVER
Nevada Bar No. 5648
Office of the Attorney General
Las Vegas, Nevada 89101-1068
P: (702) 486-3120
F: (702) 486-2377
TGover@ag.nv.gov
Attorneys for State of Nevada
8
DISTRICT COURT
9
10
11

Plaintiff,
12
v.
-s

->c z
c;
'43-
,47.15
g
2 3 -
73
16
17
Defendant.
)
)
)
)
)
)
)
)
)
)
)
Case No.: C-11-275700-1

Dept. No.: V
Date of Hearing: 2/06/12
Time of Hearing: 9:00 a.m.
POINTS AND AUTHORITIES IN SUPPORT OF SENTENCING
18
With the leave of Court, the Plaintiff State of Nevada, through counsel Chief Deputy
19
Attorney General, Thom Gover, files the instant points and authorities in support of the
20
sentencing of Defendant David Schubert, ("Schubert").
21
th
DATED this 20 day of January, 2012.
22
23
24
25

Attorney General
By: / s / Thom Gover
THOM GOVER
26
27
28
A.
On May 19, 2011, a criminal complaint was filed charging Schubert, with: (1) Possession
of a Firearm by a Prohibited Person, a B felony in violation of NRS 202.360; (2) Conspiracy to
Violate the Uniform Controlled Substances Act (a first offense), a C felony in violation of NRS
453.401; (3) Unlawful Possession of a Controlled Substance not for the Purpose of Sale (a first
offense), an E felony in violation of NRS 453.336(1)&(2)(a) and (4) Unlawful Use of a Controlled
Substance, an E felony in violation of NRS 453.411. Preliminary hearing was set for October
13, 2011.
9
10
On June 21, 2011, Schubert filed a Motion to Suppress and Request for Evidentiary
Hearing alleging the following claims for relief:
11
The "search" of Mr. Srhuhart's vehicle without A search warrant was illegal and the
results of said search must be suppressed.
12
13
7
z
;
PROCEDURAL BACKGROUND
14
1415
16
17
18
H.
The Court should Suppress the Results of the Blood Test:

a. Inadequate Probable Cause is Set Forth on the Face of the Affidavit to Justify
the Seizure of "Blood;"
b. The Search Warrant Itself Authorized the Search of "Said PremiseNehicles for
Said Property..." and Did Not Authorize the Search of the Person of Mr.
Schubert;"
c. The Clark County District Attorney's Office Should Not Have Participated in
Obtaining andior Assisting in the Acquisition of Any Search Inarrants; and
19
21
d. The Search Warrants were not issued by a "Neutral and Detached Magistrate"
and based upon information and belief normal procedure was not followed for
purposes of obtaining a search warrant or search warrants.
22
On August 18, 2011, Schubert unconditionally waived his right to a preliminary hearing in
23
anticipation of entering into a guilty plea agreement with the State. In exchange for Schubert's
24
entry of a guilty plea to one count of Unlawful Possession of a Controlled Substance not for the
25
Purpose of Sale (First Offense), the State would dismiss the remaining three counts contained
26
in the information. Additionally, upon Schubert's agreement to a) complete 200 hours of
27
community service; b) attend and successfully complete a program of treatment and
28
rehabilitation pursuant to NRS 453.580; and c) stay out of trouble, the state would not oppose a
20
`.4
>0'
;
Based on the parties'
stayed adjudication and probation pursuant to NRS 453.3363.
representation, the Justice Court bound the matter over to district court as charged, vacated the
preliminary hearing court date and set the matter in the District Court, Clark County for
September 7, 2011.
On September 7, 2011, Schubert entered into a Guilty Plea Agreement with the State as
anticipated in the prior proceedings. Schubert was canvassed by the Judicial Officer of the
District Court Clark County and the Court accepted the plea. The matter was referred to the
Division of Parole and Probation and set for sentencing on November 17, 2011.
The Division of Parole and Probation prepared its report on November 7, 2011. The
10
recommendation of the Division of Parole and Probation was that Schubert's sentence be
11
deferred pursuant to NRS 453.3363, that Schubert be sentenced to a term of 12-30 months, that
12
he be placed on probation according to the terms of the parties' agreement and additionally that
13
the Court impose a $5000.00 fine and require Schubert to serve the first 30 days of his probation
14
in the custody of Clark County Detention Center.
15
On November 17, 2011, Judge David Barker continued the matter for the presence of
.1
16
17
18
19
20
Judge Douglas Herndon citing a judicial conflict.

On December 1, 2011, Judge Douglas Herndon recused himself noting a disagreement
with the negotiation and ordering Master Calendar to reassign the matter to a new department.
On December 5, 2011, the matter was reassigned to Department V, and a status check
was calendared for December 19, 2011.
21
On December 19, 2011, the Court, citing Eight Judicial District Court Rule 1.48(j),
22
conducted an examination of the State to reconsider the acceptance of the negotiated plea as
23
an abuse of prosecutorial discretion. Thereafter, the Court granted leave to the parties to file
24
points and authorities and set the matter for a decision on February 6, 2012.
25
26
27
28
I
2
B.
ANALYSIS
1.
Defendant Schubert stands before this Court ready to be sentenced. The

Court has already accepted the plea agreement of the parties. It is the
Court's duty to impose a sentence without unreasonable delay.
This Court accepted the Guilty Plea Agreement of the parties in the instant action on
September 7, 2011. It ordered the preparation of a Presentence Investigation Report and said
report was prepared on November 7, 2011. Schubert has twice previously presented his person
for sentencing; on November 17, 2011 and December 1, 2011. After reassignment to a different
department of the District Court Clark County, his sentencing has since been taken off calendar.
There is nothing currently preventing the prompt sentencing of Schubert and the State hereby
10
moves this Court to set a date for the sentencing of Defendant Schubert. Even where a district
11
court is dissatisfied with a plea bargain struck by the State, in accepting a guilty plea, the court is
12
bound to follow all relevant statutory sentencing provisions and sentence a defendant. See
13
Miller v. State, 113 Nev. 722, 726, n. 3(1997). As required by NRS 176.015, Isientence must
be imposed without unreasonable delay" in what the legislature characterizes as a "prompt
cc
,3
t15
hearing."
16
2.
It would be an abuse of discretion for the Court to sua sponte reconsider it's
own acceptance of the parties' plea agreement.
- 17
18
In seeking to reconsider its prior acceptance of the parties' plea agreement, the Court, on
19
December 19, 2011, specifically cited Eighth Judicial District Court, Rule 1.48(j) as vesting the
20
Court with the authority to reconsider the acceptance of a negotiated plea. Whereupon, the
21
Court proceeded to canvas the state prosecutor to determine whether the negotiated plea was
22
an abuse of prosecutorial discretion pursuant to Sparks v. State, 104 Nev. 316, 759 P.2d 180
23
(1988).
24
Rule 1.48(j) of the Eighth Judicial District Court Rules is simply provides:
25
A motion for reconsideration of a recommendation or decision of the criminal division

master shall be brought before the district judge sitting in the department of origin and
shall be decided upon the pleadings and any transcript of the proceedings before the
criminal division master unless the district judge deems further evidence to be necessary.
26
27
28
00,
o
-.1
47
The rule is silent on vesting any authority on a district court to sua sponte reconsider a decision
of a criminal division master. Rule 1.48(j) does not provide any specific authority "...to
reconsider the acceptance of the negotiated plea" in the instant case or in any case. No party to
the instant action has filed a motion for reconsideration of any recommendation or decision of
the criminal division hearing master. And, as noted by the Court on the record, the hearing
master determined that Schubert's "...plea was freely and voluntarily given" and accepted his
plea. As such, Schubert stands ready before this Court for sentencing as required by NRS
176.015.
In justifying its effort to reconsider its own acceptance of the parties' plea agreement, the
10
Court makes a record of a perceived failure of the Criminal Division Hearing Master to make an
11
examination as to whether the plea was an abuse of prosecutorial discretion. The Court can cite
12
to no authority that requires an examination of the state prosecutor regarding an abuse of
13
prosecutorial discretion prior to the acceptance of a guilty plea agreement. It certainly is not the
g 3",
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00
practice of the District Court Clark County to examine the state, in each and every case,
00 15
regarding the abuse of prosecutorial discretion prior to accepting a guilty plea agreement. Such
16
an examination is only necessary when a judge is concerned that a plea agreement was entered
17
into for the sole purpose of infringing on judicial sentencing authority and absent any valid
18
prosecutorial interest or other compelling independent consideration for refusing to proceed to
19
trial.
20
(1997). The magistrate did nothing wrong in accepting the parties' plea agreement.
22 2
Sandy v. Fifth Judicial District Court, 113 Nev. 435, 441-42, 935 P.2d 1148, 1151-52
21
The Criminal Division Magistrate for the District Court Clark County canvasses hundreds
22
of defendants a week. There is no record that she ever for one second had any concern with
23
the exercise of prosecutorial discretion in the instant case. In a very routine manner, she
24
determined that the Defendant freely and voluntarily entered into the parties' guilty plea
25
agreement and accepted the plea. From a plain reading of the Information and the Guilty Plea
26
Agreement, the magistrate was informed that SCHUBERT was in possession of only .09 grams
27
of Cocaine, and due to that fact, he would plea guilty to the crime of possession of a controlled
28
substance, an E felony. The State agreed to dismiss the related counts charged in the Criminal
Complaint and pose no objection to a request by the Defendant for a stayed adjudication and
probation as statutorily permissible pursuant to NRS 453.3363 conditioned on a number of
requirements. Furthermore, the parties agreed the sentencing court was not bound by the
parties' recommendations at sentencing and Schubert's sentence would be determined by the
Court within the limits prescribed by statute.
Nothing has changed from the date the District Court Clark County accepted the parties'
plea agreement in the instant case. No false information was provided to the Court, the pre-
sentence investigation presents no new information that was not previously available at the time
of the entry of plea. The only issue that has become apparent has been the Court's
10
disagreement with the terms of the negotiation. Such is not a basis to reject a guilty plea
11
agreement, much less reconsider a previously agreed upon guilty plea agreement. As a result,
12
Schubert stands ready to be sentenced by this Court without any unreasonable delay as
t I 13
mandated by NRS 176.015.
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3.
The Court's reliance on Sparks v. State is misplaced.
15
In justifying its December 19, 2011 examination of the state prosecutor, the Court
16
specifically relied upon Sparks v. State, 104 Nev. 316, 759 P.2d 180 (1988), to canvas the state
17
prosecutor to determine whether the negotiated plea was an abuse of prosecutorial discretion.
18
Sparks v. State is a pre-plea case. It defines a court's exercise of discretion to reject a plea
19
negotiation. It recognizes the obligation of a district court "...to consider seriously the proffered
20
plea." Id at 322 (citing Sturrock v. State, 95 Nev. 938, 604 P.2d 341 (1979)). And, imposes the
21
following requirement on a district court: "...if the district court disapproves the proposed
22
agreement, it shall state the reasons for its disapproval on the record." Id (citing United States v.
23
Ammidown, 497 F.2d 615 (D.C. Cir. 1973)). In its reliance on United States v. Ammidown, the
24
Nevada Supreme Court was defining the court's discretion to "reject" or "withhold approval" of
25
the parties' plea agreement and thereby require an unwilling defendant and prosecution to go to
26
trial. Sparks at 323-24 see also Sandy v. Fifth Judicial District Court, 113 Nev. 435, 935 P.2d
27
1148 (1 997)(pre-plea refusal to accept or reject a guilty plea arising out of a plea bargain).
2. 3
11
28
'N
Sparks says nothing about a court reconsidering its previous approval of a guilty plea
agreement.
The Court's acceptance of a defendant's guilty plea pursuant to a guilty plea agreement
has serious legal consequences to all parties involved. Once a defendant enters a guilty plea
and the plea is accepted by the court, due process requires that the plea bargain be honored.
State v. Crockett, 110 Nev. 838, 842, 877 P.2d 1077, 1079 (1994)(citing Santobello v. New York,
404 U.S. 257 (1971)). Once accepted by the Court, the State is absolutely bound by its
agreement with the defendant "...to the most meticulous standards of both promise and
performance ... the violation of the terms or 'spirit' or the plea bargain requires reversal." Citti v.
10
State, 107 Nev. 89, 91, 807 P.2d 724, 726 (1991). Similarly, the Defendant is bound by his
11
agreement and can only withdraw his plea, prior to sentencing, with the leave of court. NRS
12
176.165. As such, it stands to reason, in accepting a guilty plea, a court is bound to follow all
13
relevant statutory sentencing provisions in sentencing a defendant as required by Miller infra. In
14
the instant case, such statutory sentencing provisions include the mandate to sentence a
15
defendant without unreasonable delay.
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"
There was no abuse of prosecutorial discretion in the instant case.
16
4.
17
Even assuming the applicability of Sparks v. State in the instant case, there was not an
18
abuse of prosecutorial discretion in the instant case.
19
A district judge may, in his or her discretion, refuse to accept guilty pleas arising out of
20
plea bargains if he finds that the prosecutor has failed to give consideration to factors that must
21
be given consideration in the public interest. Sandy v. Fifth Judicial District Court, 113 Nev.
22
at.439 (citing Sparks). However, trial judges are not free to withhold approval of guilty pleas on
23
this basis merely because their conception of the public interest differs from that of the
24
prosecuting attorney. Id. The question is not what the judge would do if he were the
25
prosecuting attorney, but whether he can say that the action of the prosecuting attorney is such
26
a departure from sound prosecutorial principle as to mark it an abuse of prosecutorial
27
discretion." Id at 439-40.
28
As specified by the Nevada Supreme Court in Sandy, a trial judge may not reject a plea
bargain solely on the grounds that the plea prevents the judge from sentencing as harshly as he
or she would like. Id at 441. Plea bargains generally result in a reduction of charges against the
defendant, and consequently a diminishment of the judge's authority to sentence. Id. Allowing
trial judges to reject a plea bargain for infringing upon judicial sentencing authority because the
original indictment charged the defendant with a more serious offense affords judges too much
discretion to inhibit the role of the prosecutor. Id. Such broad judicial authority is inconsistent
with Sparks and with the concept of separation of powers embodied in the Nevada Constitution.
Id. Accordingly, rejection of a plea bargain based upon infringement of judicial sentencing
10
authority is inappropriate absent a finding that the prosecutor had no valid prosecutorial interest
11
or other compelling independent consideration for refusing to proceed to trial. Id at 441-42.
12
During the December 19, 2011 canvas of the prosecutor in the instant case, the
13
prosecutor described that the miniscule amount of controlled substance, .09 grams of Cocaine,
14
was considered in formulating the plea negotiation with the Defendant Schubert. The instant
15
case was Schubert's first offense and the prosecutor's observations of similarly situated first
16
time offenders was that such cases were negotiated in the Justice Courts of Las Vegas as a
17
misdemeanor offense. 1 Nevertheless, due to the fact that the Defendant was a previous deputy
18
district attorney, and the further complication of Schubert's unlawful possession of a firearm due
19
to his status as an "unlawful user" or "addict" of controlled substances, the prosecutor opined
20
that Schubert should be required to enter a plea to a felony count and successfully complete
21
probation. If Schubert was unsuccessful on probation, he would deserve the revocation of
22
probation and to be tendered to the custody of the Nevada Department of Corrections for a term
23
of one to four years; in such case the public interest of deterrence and retribution would be
24
served. If Schubert was successful on probation, including staying drug free during the term of
8
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1
25
26
27
28
Supporting the belief of the prosecution in this regard are two higher profile cases handled by Schubert during
his tenure at the Clark County District Attorney's Office. The cases of Bruno Mars, (Peter Hernandez), and Paris
Hilton are illustrative of common resolutions of PCS cases. Bruno Mars was charged with possession of a controlled
substance, for what was described as a "baggy" of cocaine, bound up to the District Court Clark County, Case No. C11-271022-1, entered a guilty plea to the count, resulting in a stayed adjudication, informal probation for one year
and just recently a dismissal of the count. Ms. Hilton's case, also for possession of cocaine, resulted in a plea to two
misdemeanor counts and ultimately dismissal in Justice Court, Las Vegas Township, Case No. 10F16589X.
410
probation, he would avoid incarceration and hopefully be rehabilitated; thereby forwarding the
public interest in the rehabilitation of an otherwise high functioning legal professional. The
negotiated plea permitted a quick and fair resolution of the matter without further litigation,
including the litigation of non-frivolous evidentiary issues that were already being raised by the
Defense. As described above, and as articulated during the December 19, 2011 canvas of the
prosecutor, the Court should perceive the State's efforts to balance the public interests of
fairness to the defense and fairness to prosecution interests in reaching a plea agreement with
the Defendant. Additionally, the Court hopefully perceives that there was not any intent to
infringe on the Court's judicial sentencing authority beyond what was incidental to the plea
10
'"'
E
11
The Court, during the December 19, 2011 canvas, expressed concern with the dismissal
12
of the Possession of a Firearm by a Prohibited Person Count, as a result of the parties' plea
13
agreement, indicating that such Count did not mandate probation. As discussed during the
14
canvas, the manner of possession of the firearm was completely legal; except for Schubert's
t
E
bargain process.
15
status as a person who "...is an unlawful user of, or addicted to, any controlled substance."
16
NRS 202.360(1)(c). There was no evidence that Schubert brandished the firearm, or otherwise
17
used the firearm, to obtain the possession of controlled substances. The firearm was simply
18
determined to be in his personal property and/or in his possession; a felony for a "prohibited
19
person." As such, the State focused on the root cause of all of Schubert's legal concerns, his
20
use of controlled substances, in formulating a resolution with the defense.
E ;
21
Under such circumstances, the dismissal of the Possession of a Firearm by a Prohibited
22
Person Count was not "...such a departure from sound prosecutorial principle as to mark it an
23
abuse of prosecutorial discretion" as discussed in Sparks and Sandy. At the time of negotiating
24
the plea agreement with Schubert, the State did not have a sense that great numbers of people
25
where being sent to prison for the crime of being a "Prohibited Person in Possession of a
26
Firearm" due to their status as "...being an unlawful user of, or addicted to, any controlled
27
substance." A review of the roster of the Nevada Department of Corrections after the December
28
19, 2011 canvas by this Court supports the State's belief. Exhibit "1" (Email and Excel
Spreadsheet of Inmates currently housed in the Nevada Department of Corrections for violations
2
of NRS 202.360). While the Nevada Department of Corrections has 474 inmates currently
incarcerated for the crime of Possession of a Firearm by a Prohibited Person, such inmates are
incarcerated due to their status as "ex-felons;" in violation of NRS 202.360(1)(a). Of the 474
inmates, this office was only able to identify 1 case from the District Court Clark County where a
judgment of conviction was entered against the Defendant for being a "Prohibited Person in
Possession of a Firearm" due to his exclusive status as "...being an unlawful user of, or addicted
to, any controlled substance;" a violation of NRS 202.360(1)(c). 2 We were also able to identify
two cases from the District Court Clark County where, in addition to being an ex-felon, the
10
Defendant was alternatively charged as "...being an unlawful user of, or addicted to, any
11
controlled substance" and convicted on that count.
12
Finally, the parties' agreement provides the Court sufficient latitude to sentence this first
13
time offender appropriately. While the State has merely agreed to not oppose a stayed
14
adjudication in the instant case, pursuant to the terms of the parties' agreement, the Court is not
g 15
bound to any lawful sentence by the State's lack of said opposition. And, while the Court has
16
noted Schubert's plea to the crime of "Unlawful Possession of a Controlled Substance not for
17
the Purpose of Sale" is an E felony, mandating a suspended sentence, the Court is free to set
18
the conditions of probation to include "requiring the person to serve a term of confinement of not
19
more than 1 year in the county jail." NRS 193.130(2)(e). Granted, the maximum term of
20
incarceration for a person convicted of NRS 202.360 is 28-72 months, but again, how long do
21
you want to send a person to prison for a first offense possession of a personal use amount of a
22
controlled substance? Additionally, the Court is not bound to stay the adjudication in the instant
23
case as permitted by NRS 453.3363. Any infringement on the sentencing authority of the court
24
was simply incidental to the negotiation of the case.
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25
5.
26
As referenced above, upon the acceptance by the Court of the parties' plea agreement,
27
the State is meticulously bound to the terms of said agreement. While the State endeavors
28
The State is Bound by its Agreement.
This inmate's incarceration most likely resulted from his conviction of Trafficking in a Controlled Substance, to
wit: 27.9 grams of Methamphetamine.
10
herein to describe the parameters of the Court's discretion at the time of sentence the
Defendant, it herein reaffirms its obligations under the parties' agreement and will continue to do
so at the time of sentencing. No argument or analysis contained in the points and authorities
provided herein is meant as a deviation from the States agreement with the Defendant in the
instant case.
C. CONCLUSION
80,
without any unreasonable delay. The State understands the Court does not agree with the
negotiations of the parties in the instant case. Nevertheless, the State continues to assert that
10
the resolution is a fair and just resolution properly balancing the public interests of (a) fairness to
11
the defense; (b) fairness to prosecution interests; and (c) protection of the sentencing authority
12
reserved to the judge.
13
> 14
00
'4
For the reasons stated above, the State moves the Court to set this matter for sentencing
9.
15
16
17
DATED this 20 th day of January, 2012.

Attorney General
By: / s / Thom Cover
THOM COVER
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CERTIFICATE OF SERVICE
2
I hereby certify that, on the 23 rd day of January, 2012, service of the POINTS AND
AUTHORITIES IN SUPPORT OF SENTENCING was made this date by depositing a true and
correct copy of the same for mailing, first class mail, at Las Vegas, Nevada, or via facsimile,
addressed as follows:

William B. Terry, Chtd.
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/ s / Danielle Wright
An employee of the Office of the Attorney General
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EXHIBIT 1
Thorn M. Gover
From:
Sent:
To:
Subject:
Scott Howard [showard@doc.nv.gov ]

Thursday, January 19, 2012 9:06 AM
Thom M. Cover
Offenders with offense 254
importance:
High
Attachments:
20120119_AG_Request.xls
i
20120119_AG_Req
uest.xls (93 KB...
Here they are. If you see an offender name listed twice it because he has two
cases with the 254 offense
Scott Howard
Cell: 775-315-7856
Central 775-887-3149
NDOC_N umbe r
Offender Name
Current Location Case Info Numbe
0000085245
TOIRAC, DENNY
CCC
249550
0000085245
TOIRAC, DENNY
CCC
270909-1
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PATRICK-HOWARD, MARQUIS
CCC
252778
0001016558
SULLIVAN, DREON
CCC
241868
0001070949
ANDERSON, JOSHUA
CCC
271036-1
0001073841
JIMENEZ-SOSA, HECTOR
CCC
272712-2
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CORMIER, JAMES
CGTH
CR11-0193
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KLING, AARON
CGTH
252764
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FAJARDO, JEREMI
CGTH
231713-2
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GONZALEZ, JESUS
CGTH
266291
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LEWIS, JONATHAN
CGTH
258982
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AMANN, ROLLAND
CGTH
271208-1
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RASMUSSON, ERIK
CGTH
263257
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ADLER, MARTAIN
CGTH
261100
0001060083
NUNEZ, DAVID
CGTH
260969
0000068528
NOTO, RYAN
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270744-1
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BRITT, GROVER
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ORENELAS, CARLOS
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BEJARANO, JOHN
ESP
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BEAVERS, MICHAEL
ESP
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BEAVERS, MICHAEL
ESP
891384
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MCKAY, JAMES
ESP
86832
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GUY, CURTIS
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GUIDO, JOHN
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SONNER, MICHAEL
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947613
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PALIOTTA, GILBERT
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SMITH, DONTE
ESP
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ENNIS, BRUCE
ESP
110002
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LISLE, KEVIN
ESP
129540
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AGUILAR, DAVID
ESP
138834
0000055187
MIDDLETON, DAVID
ESP
951882
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IGBINOVIA, ENOMA
ESP
146894
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PICOTTE, KEVIN
ESP
4845
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PARRA, JULIO
ESP
160060
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ELLIS, MICHAEL
ESP
159690
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MCNEIL, MICHAEL
ESP
990359
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RAY, MICHAEL
ESP
169269
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MIZZONI, JOSEPH
ESP
172991
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DIXON, TERRY
ESP
239594
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MURDOCK, BILLY
ESP
CR08-1981
0000073847
VIGOA, JOSE
ESP
180124
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MALONE, BRIAN
ESP
CR08-1515
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DAVIS, LADONTAY
ESP
186529
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SMITH, WALTER
ESP
CR07-2001
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DELGADO, DONALD
ESP
249515
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RAMOS, VICTOR
ESP
239625
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ROSS, MARIO
ESP
256891
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BRASS, RONNIE
ESP
223704
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BISHOP, DAYLON
ESP
258710
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MARSHALL, DEONTE
ESP
246372-1
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MORALES, PAUL
ESP
201209
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MORALES, PAUL
ESP
202109
0000085400
MARTIN, DONALD
ESP
232127
0000086741
DENT, BENJAMIN
ESP
245676
0000086756
SUMMERS, CHARLES
ESP
196848
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MCCALLISTER, RYAN
ESP
211944
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CASAS, MANUEL
ESP
212367
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RICE, PAUL
ESP
054953
0000087951
GARCIA, IVAN
ESP
183922
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MCBROWN, AARON
ESP
215083
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CLARK, TERRY
ESP
258546
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ARROYO, ANGEL
ESP
241279
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GARCIA, JOHN
ESP
250022
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HOLMAN, JERRY
ESP
219761
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TOWNSEL, CURTIS
ESP
248085
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SMITH, WILLIE
ESP
197707
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SPLOND, KENNETH
ESP
212857
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BOWDISH, AUSTIN
ESP
241842
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LEDESMA, JESUS
ESP
248459
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RUBALCAVA, ANGEL
ESP
261593-1
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HIBDON, JEFFREY
ESP
CR07-0436
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BROWN, DEONTE
ESP
255505-1
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O'CONNELL, MICHAEL
ESP
C239921
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MACIAS, FRANK
ESP
231335
0001022987
MACIAS, FRANK
ESP
231714
0001024943
HULSE, MICHAEL
ESP
235639
0001033193
GEORGE, STACEY
ESP
07C40045
0001041134
GROVE, GEOFFREY
ESP
237305
0001046452
DAVIS, SHAWN
ESP
CR 0912092
0001048794
JOHNSON, KEVIN
ESP
247812
0001053206
POPOV, IGOR
ESP
265083
0001053676
SMALLEY, DEON
ESP
265716
0000056368
TURNER-SLACK, SUZANNE
FMWCC
143556
0000080330
GALLOWAY, TERESALYNN
FMWCC
CR09-1718
0000089028
MORA, BEXY
FMWCC
C272660-1
0001006073
HAMMOND, JENNIFER
FMWCC
C253883
0001076426
LEON, LOIDA
FMWCC
260181
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MICALIZZI, MARIO
HCC
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MORRISON, JAMES
HCC
192335
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CAMPBELL, LAYNE
HCC
050966
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RANDALL, DUANE
HCC
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RAZO, LUIS
HCC
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SCOTT, ALBERT
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BAUGH, SIDNEY
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CLEWIS, MARK
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MARTIN, FRANK
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HOOKS, JEROME
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SHELTON, LEONARD
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HDSP
262523
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JANISCH, ERIC
HDSP
250423
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NELLUMS, JAMES
HDSP
144167
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COLE, TIERRE
HDSP
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SMITH, TODD
HDSP
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SMITH, TODD
HDSP
277053-1
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COOK, COLE
HDSP
262765
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ORNELAS, MICHAEL
HDSP
257074
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GARNETT, BRYON
HDSP
172935
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BORERO, DALE
HDSP
241379
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GLASPER, RAYMOND
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255988
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MARTEL, MANUEL
HDSP
175768
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MARTEL, MANUEL
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175976
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PINEDA, PASCUAL
HDSP
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SMITH, LEEROY
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183370
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STEWARD, JAMES
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BROOKS, KEITH
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183271
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RODRIGUEZ, VICTOR
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247070
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189934
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0000080590
ANTONETTI, JOSEPH
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Exhibit "C"
3
4
5

(702) 385-0799
(702) 385-9788 (Fax)
6
DISTRICT COURT
8
9
10
11
12
13
Plaintiff,
VS.
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18
19
20
21
22
CASE NO. C275700

DEPT. NO. V
DAVID SCHUBERT,
Defendant.
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HEARING DATE:
HEARING TIME:
02/06/12
9:00 A.M.
MEIVIORANt UM IN SUPPORT OF ACCEPTING THE PLEA AGREEMENT

COMES NOW, the Defendant, DAVID SCHUBERT, by and through his counsel, WILLIAM
B. TERRY, ESQ., of the law offices of WILLIAM B. TERRY, CHARTERED and files the instant
memorandum in support of the Guilty Plea Agreement currently pending in the instant case.
This Memorandum is made and based upon the pleadings and papers on file herein, the
attached analysis of facts and authorities in support hereof, and any oral arguments as may be
presented at the hearing in this matter.
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25
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28
WILLIAM B. TE
Nevada Bar No. M1028
(702) 385-0799
ANALYSIS OF FACTS
At the time of the sentencing in the instant case this Honorable Court questioned whether or
not the Court was going to accept the resolution. Mr. Schubert had originally been charged in a
multi-count Complaint in the Justice Court level by the Attorney General's office. At the time that
the matter was pending in Justice Court a Motion to Suppress was filed for and on behalf of Mr.
Schubert. A copy of that document is attached hereto and incorporated by reference herein as
Exhibit "A". The preliminary hearing never occurred because a pre-preliminary hearing resolution
was reached. As a result of that resolution and in reliance upon that resolution Mr. Schubert waived
his right to a preliminary hearing and ultimately appeared in District Court for purposes of entry of
10
his plea. At that time, the Guilty Plea Agreement was filed, a copy of which the Court already has
11
before it. The Guilty Plea charged Mr. Schubert with a felony offense of Unlawful Possession of a
12
Controlled Substance Not for Purposes of Sale. Pursuant to the Plea Agreement the position of the
13
Attorney General's office as the representative of the State of Nevada was as follows:
14
15
Upon the tender of my plea of guilty the State will not oppose a
stayed adjudication of probation pursuant to NRS 453.3363 not to
exceed three years with the following conditions...
16
Obviously, the Plea Agreement went on to state the conditions which Mr. Schubert agreed
17
to. The Court accepted the plea at the time of the arraignment in what is commonly referred to as
18
the lower level arraignment calendar. The case was ultimately assigned to this Honorable Court and
19 11 as stated Elbow. the Court questioned the proposed resolution. The Court thereafter gave both the
20
State and the defense an opportunity to file whatever memorandum they wished to. The status of
21
the case is that both the Attorney General's office and the Defendant are still in agreement with the
22
Guilty Plea Agreement and it is the position of the defense that the Court should accept the
23
resolution. By accepting the resolution it is specifically meant that the Court has already accepted
24
the plea and accepted the plea agreement. It is further implied that the Court should accept the
25
balance of the resolution. The issue really is not whether the Court will accept the plea or not
26
because the plea has already been made. The issue is whether or not the Court will accept the plea
27
bargain. If the Court does not accept the plea bargain then the simplistic approach of the defense is
28
that the matter should be remanded to Justice Court for further proceedings. To make it clear,
2
however, it is still Mr. Schubert's position that the Court should accept the resolution which would
mean that the Court would not adjudicate him guilty but would place him on probation pursuant to
NRS 453.3363.
Mr. Schubert was originally charged with Possession of a Firearm by a Prohibited Person,
Conspiracy to Violate the Uniform Controlled Substance Act, Unlawful Possession of a Controlled
Substance Not for Purposes of Sale, and Unlawful Use of a Controlled Substance. The Motion to
Suppress raised substantial issues pertaining to the search and, most specifically, the evidence
derived as .a result of the search. It was also pointed out that there were multiple search warrants
issued a later point in time and that nothing illegal was found as a result of the execution of these
10
search warrants. Counsel is referring to the search of the residence. Defense also raised issues in
11
reference to the seizure of the alleged substance which was .01 grams The substance was seized
12
without a search warrant and as represented in the Motion to Suppress in violation of Nevada
13
Supreme Court pronouncement including that of Camacho v. State, 119 Nev. 395, 75 P .3d 370
14
(2003) and other cases which followed it. Counsel also raised issues regarding the seizure of the
15
blood and raised issues pertaining to the participation by the Clark County District Attorney's office
16
in acquiring these search warrants and the issue of whether or not a "neutral and detached
17
magistrate" in fact issued those warrants. It is the defense's position therefore is that there were
18
substantial issues pending before the Justice Court in reference to the acquisition of any and all
19
PI 11 1P1.1 o.
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charged
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20
the Attorney General's office were mandatory probation because they were Category E felonies.
21
While the Attorney General's office can argue that the Conspiracy charge was a Category C felony
22
there were numerous issues that pertain to the Conspiracy count.
23
The question may also arise as to whether or not the resolution that was offer and accepted
24
was unusual. Counsel for Defendant Schubert appears in Justice Court daily. It is suggested that
25
it is not unusual for a case of this nature to be resolved to, for example, a simple misdemeanor with
26
drug counseling and a fine. What the defense and the Attorney General's office agreed to however
27
was a much more stringent resolution because even if Mr. Schubert was to get the deferred
28
prosecution he must earn a dismissal of that case by doing such things as to community service, the
3
drug counseling, etc., along with staying out of trouble. It was in fact counsel's desire as well as Mr.
Schubert's desire to demonstrate that this was not a repetitive situation and that Mr. Schubert could
successfully complete the terms of the deferred prosecution. Other more high publicity type cases
have been reduced to misdemeanors with dismissals. The sum total of the resolution is that it was
Mr. Schubert's desire to obtain a dismissal ultimately of the instant case. The Court is asked to draw
upon this factual scenario. Let us assume that Mr. Schubert received a misdemeanor conviction in
the Justice Court level. He would thereafter wait for a two year period of time and assuming that
he has had no prior problems and no subsequent problem he would file a petition to seal his record
and more likely than not that record would be sealed. Under the terms of the instant agreement, it
10
will be approximately three years before the case is dismissed against Mr. Schubert and he must
11
thereafter wait an additional period of three years to petition the Court to seal his record_ In
12
the resolution before this Honorable Court is worse than accepting a conviction on a misdemeanor.
13
Beside the fact that the resolution was a fair one and that both the State and the defense were
14
benefitting from it, the Defendant respectfully questions the Court in reference to the acceptance of
15
the resolution. The plea has already been accepted. Mr. Schubert has already done certain actions
16
which are not yet before the Court to fulfill the requirements that were envisioned by the both the
17
Attorney General's office and the defense. If there was an issue as to whether or not to accept the
18
resolution it should have been raised in the lower level and not on the date of sentencing or on a date
19
when this case was before the Court on a status check
effect,
20
As stated above the instant case is not one that involves acceptance of a plea it is one that
21
involves acceptance of a plea bargain. For purposes of guiding this Honorable Court, the case of
22
Sparks v. State, 104 Nev. 316, 759 P.2d 180 (1988) is referred to this Honorable Court. That case
23
involves a matter presided over by former District Judge John F. Mendoza. Within the case he had
24
rejected a pre-trial plea and a plea which was offered and accepted during the course of the trial. The
25
difference in the Sparks case and the case at bar is that the Court never accepted the plea to the
26
resolution in the first place. Separate and aside from that issue, however, the Nevada Supreme Court
27
found that District Court Judge Mendoza was in error in not accepting the plea. Besides the
28
argument that it is up to the State and the defense as to whether or not to make an offer and to accept
4
the Court laid out a procedure for doing so. While counsel could type up within the instant points
and authorities and factual analysis exactly what the Court stated, quite frankly, it is more simplistic
to attach a copy of pages 322, 323 and 324 from the Sparks decision and a copy of those pages are
in fact attached hereto and incorporated by reference herein as Exhibit "B". What is important is that
in Sparks the Nevada Supreme Court stated that in rejecting a plea the Court must "provide a
reasoned exercise of discretion". The Court further found "The judge's statement or opinion must
identify the particular interest that leaves him to require an unwilling defendant and prosecution to
go to trial." Ultimately, the Court must make a finding that "...the action of the prosecuting attorney
is subject departure from sound prosecutorial principals as to mark it an abuse of prosecutorial
10
11
discretion."
There was no abuse of prosecutorial discretion in the instant case. It is submitted that courts
12
rarely with a strong emphasis on the word rarely question the exercise of prosecutorial discretion.
13
CONCLUSI N
14
For the above indicated reasons it is respectfully requested that this Honorable Court both
15
accept the resolution and impose the resolution offered by the prosecution as a result of their exercise
16
of prosecutorial discretion and accepted by the defense.
17
DATED this27 day of January, 2012.
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23

,19
WILLIAM B.
B. TERRY, ESQ.
(702) 385-0799
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44
11

(702) 385-0799
(702) 385-9788 (Fax)
JUSTICE COURT, LAS VEGAS TOWNSHIP
Plaintiff,
)
)
)
)
Defendant.
)
)
)
)
vs,
DAVID SCHUBERT,
CASE NO. 11F05144X

DEPT. NO. 3
MOTION TO SUPPRESS AND REQUEST FOR EVIDENTIARY HEARING

COMES NOW the Defendant, DAVID SCHUBERT, by and his counsel, WILLIAM B.
TERRY, ESQ., of the law offices of WILLIAM B. TERRY, CHARTERED and moves that this
Honorable Court suppress the search of the Defendant's vehicle and likewise suppress any and all
evidence obtained as a result of the execution of any and all search warrants.
This Motion is made and based upon the pleadings and papers on file herein, the attached
analysis of facts in support hereof, and any oral arguments as may be presented at the hearing in this
matter.
WILLIAM B. TERR2f--,-ESQ.
ANALYSIS OF FACTS
The Defendant is currently charged with four counts being Possession of Firearm by a
Prohibited Person, Conspiracy to Violate the Uniform Controlled Substances Act, Unlawful
Possession of a Controlled Substance, and Use of a Controlled Substance. Each of these allegations
are felonies.
Because of the issues to be raised herein, certain documents are attached hereto and
incorporated by reference herein and will be referred to. Exhibit "A" is a copy of the Police Reports
in the instant case. Exhibit "B" is a copy of the Search Warrant for purposes of blood along with the
Affidavit in support thereof and the Return. Exhibit "C" is a copy of the Search Warrant for two
10
residences along with the Affidavit in support thereof and the Return. The Court's attention is drawn
11
to the fact that no items wcrc seized as A result of the exec ution of the Search Warrants on resideric,es
12
but because of the issues raised herein, counsel for Defendant, Schubert, felt it was necessary to
13
advise the Court of this document and it's content.
14
The purpose of the instant motion is to request that this Honorable Court suppress any and
15
all evidence obtained including but not limited to anything obtained from a vehicle search, the blood
16
results, anything obtained from a search of the vehicle whether it was by way of an inventory search
17
or otherwise and, again, although nothing was found, a search of any and all evidence adduced as
18
a result of the execution of the warrants on the residences. The Court's attention is further drawn
19
to the fact that all search warrants were signed by judge William Kephart. Normally, these issues
20
might be raised within the preliminary hearing stage but because of the subject motion it may be
21
necessary to Subpoena Judge Kephart for purposes of the preliminary hearing. It is for that reason
22
that the evidentiary hearing portion is requested herein. The Court's attention is also drawn to the
23
fact that in reference to the search warrant for blood, there is no indication that the Clark County
24
District Attorney's office participated in the application or advisement in reference to the search
25
warrant. Nowhere, for example, does the name of any Deputy District Attorney appear on the search
26
warrant or the Affidavit or the Return. In reference to the search warrant on the residence, however,
27
there is an indication at Tab 49 that the search warrant was "reviewed by the Clark County Assistant
28
District Attorney, Christopher Owen..." Because of this, it may be necessary to Subpoena Mr.
2
Owens in to testify. The Court's attention is also drawn to the fact that the Clark County District
Attorney's office recused themselves from prosecuting the instant case and the instant case is being
prosecuted by the Attorney General's office.
I. ANALYSIS OF POLICE EPW TS
While the police reports are self-explanatory and can be reviewed by this Honorable Court,
what appears to be important by way of the police reports is the fact that Mr. Schubert was originally
arrested for crimes which are not set forth within the police report. As an example, it is not known
whether or not Mr. Schubert was arrested for an illegal u-turn. If so, there is more than adequate
case law to support the fact that a Las Vegas Metropolitan Police Department officer cannot arrest
10
an individual for a traffic offense but they may cite him. As an example, in reading the police i -eports
11
the officers indicate that they "cc-mcilicteci a vehicle stop due t o the fact that he did not use a turn
I2
signal..." They acknowledged that the vehicle pulled over and it was driven by Mr. Schubert. They
13
acknowledged that he acquiesced to their directives to turn the vehicle off. At this time, however,
14
the passenger door opened and a black male adult exited the vehicle and ran. The reports continue
15
"I advised over the radio for a second unit to go over to the location of the car stop and detain the
16
driver of the BMW..." The initial position of the Defendant herein was that there was no basis to
17
detain the driver. The reports continue, however, that two others officers arrived and took "...the
18
driver into custody and conducted a consensual search of his person..." The Court's attention is
19 drawn to the fact that by this point in time that Mr. Schubert was under arrest and in custody. The
20
consensual search was only of his person and revealed nothing. The Court's attention is drawn to
21
the fact that the stop was at approximately 16:45 hours. The Attorney General's office will no doubt
22
argue that it was based on Mr. Streeter's "interview" that caused them to further arrest Mr. Schubert
23
after approximately six hours on the charge of Conspiracy. The interviews, however, with Mr.
24
Streeter both of which were recorded were at 17:40 hours and 20:47 hours. The Court's attention
25
is drawn to NRS 171.123 which allows officers to conduct an investigation but which limits them
26
in time to a period of one hour. They must therefore rely upon the fact that Mr. Schubert was
27
arrested prior to the time of the Streeter interviews. The State will no doubt further argue that the
28
alleged controlled substance was in "plain view". The defense takes issue with this and, again, this
will be brought out at the time of the evidentiary hearing and the preliminary hearing. The Court's
attention is also drawn to the fact that this was well after Mr. Schubert was in custody and not at
liberty to leave because the police report indicates "during the investigation I looked into the BMW
through the windshield and could see what I believe to be a rock cocaine." The cocaine itself was
thereafter seized under the pretense that it was "plain view". No attempt to get Mr. Schubert' s
consent to search the vehicle was obtained and likewise no search warrant was obtained for the
vehicle. Ultimately, the handgun was found in the trunk of the vehicle and that is the subject matter
of one of the counts of the Complaint.
9
10
1
12
13
14
15
16
17
18
1 9 II
20
IL THE "SEARCH" OF MR. SCHU 'VERT'S VEHICLE WITHOUT A SEARCH

WARRANT WAS ILLEGAL AND THE RESULTS OF SAID SEARCH MUST BE
SUPPRESSE
Again, the State will no doubt argue that the alleged substance was in plain view. Counsel
takes issue with this and would point out to the Court that the total weight of the controlled
substance was .01 grams. It was also allegedly on the floorboard of the passenger side of the vehicle.
In Camacho v State, 119 Nev. 395, 75 P.3d 370 (2003) Nevada Supreme Court held that probable
cause to search was not enough for purposes of a seizure. First they found that warrantless searches
are per say unreasonable under the Fourth Amendment. In the Camacho case, drugs were seized
from the defendant's vehicle during a search that was not authorized under the State's constitution.
Defendant Camacho filed a Motion to Suppress and argued that the search of an automobile was
justified in Nevada only where police have probable cause to believe the automobile contains
contraband and, most critically, exigent circumstances exist to justify the search. In Camacho the
21
Nevada Supreme Court rejected all arguments that the State had in reference to the probable cause
22
23
24
25
and exigent circumstances requirement. As an example, the automobile exception was rejected. The
search incident to arrest exception was also rejected as was the inventory search exception and the
inevitable discovery exception. In Camacho the Court reiterated that they required a search warrant
or consent to search. Even a consent to search, however, was limited. In all the search warrants that
26
were issued in the instant case it is interesting that the police never bothered to get a search warrant
27
for the vehicle. Applying Camacho to the instant case, therefore, even assuming that the police had
28
4
probable cause to believe that the vehicle contained contraband there was no exigent circumstance
for its seizure. The police reports make it very clear that the officer retrieved the item from the
vehicle prior to the attempting to get any form of a search warrant. As a result, any and all evidence
obtained as a result of the entry and search of the vehicle must be suppressed. This would likewise
include the weapon found in the trunk.
6
7
HI. THE COU T SHOULD SUPPRESS THE RESULTS OF THE BLOOD TEST
A.
First of all, the Court is asked to note that there is no indicia of driving of under the influence
9
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13
14
15
16
17
18
19
20
21
22
23
Inadequate Probable Cause Is Set Forth on the Face of the Affidavit to Justin) the Seizure
of "Blood".
in the instant case. No field sobriety test was given, no horizontal gaze nystagmus was given, no
questions were asked of Mr. Schubert as to whether or not he had a substance in his system, and in
reviewing the police reports it is fairly apparent that the seizure of the blood was an afterthought.
The search warrant itself was signed by Judge William Kephart. The Affidavit does not set forth any
basis to believe that there was a controlled substance within the body of Mr. Schubert. The State
attempts to infer that because Mr. Schubert swallowed something that this could be a controlled
substance and that it would be found in his blood. The defense is prepared to put on experts to show
that this would not be the method to cause a substance to be present in blood. The search warrant
itself did not authorize the search for purposes of establishing DUI but only for purposes of
establishing "use of a controlled substance". The Affidavit does also not mention that there is
probable cause to believe that any substance is inside or in the blood of Mr. Schubert. The mere fact
that someone swallowed something was never tied in in the search warrant as the basis of probable
cause. As such, there was insufficient probable cause set forth on the base of the Affidavit to justify
the seizure of the blood.
24
B.
The Search Warrant Itself Authorized the Search of "Said Premise/Vehicles for Said
Property..." and Did Not Authorize the Search of the Person of Mr. Schubert.
25
Because of other issues which will be raised herein it is fairly apparent that the Justice of the
26
Peace who signed all search warrants was going to allow the search whether or not the face of the
27
search warrant was valid or there was adequate probable cause. Since when does a vehicle have
28
blood? The face of the search warrant does not authorize the search of the person of Mr. Schubert.
5
It simply authorizes the search of "two vials of blood". At first glance, this would appear to be a
ludicrous argument, however, it is the search warrant which must be used to determine what is the
subject matter of the search. The defense would like to inquire if blood was found in any vials taken
from the car. It is acknowledged that the Affidavit indicates "the sought out property to be found
at the following prescribed premise of David Schubert..." That, however, is not the terminology used
in the Search Warrant. The search warrant merely says the premise.
C.
The Clark County District Attorney's Office Should Not Have Participated in Obtaining
and/or Assisting in the Acquisition of Any Search Warrants.
The instant argument is raised because the search warrant and affidavit is shown to have been
reviewed by Chief Deputy District Attorney, Chris Owens. The District Attorney's office through
Mr. Owen made a determination to recuse themselves. As such, they placed themselves in a Position
of not being able to do anything in reference to the instant case. It is unknown whether or not they
contacted the Attorney General's office or any other law enforcement agency. What is known is that
the District Attorney's office recused itself or the instant case would not be being handled by the
Attorney General's office and, further, since Mr. Schubert was a Deputy District Attorney they were
probably justified in recusing themselves. What is important, however, is that once they made the
determination to recuse themselves the participation in any further acts such as assisting in the
acquisition of the search warrants would have not been justified. One cannot have a conflict and
thereafter assist law enforcement in obtaining search warrants. It is known that Chief Deputy
District Attorney, Chris Owens, came to the scene of the arrest of Mr. Schubert but only through an
evidentiary hearing will it be known whether or not Mr. Owens assisted in the acquisition of the
search warrant for purposes of the blood.
D.
The Search Warrants were not issued by a "Neutral and Detached Magistrate" and based
upon information and belief normal procedure was not followed for purposes of obtaining
a search warrant or search warrants.
In considering the instant arguments the Court is asked to take into consideration that three
search warrants were issued by the same Justice of the Peace. The Court is asked to draw upon its
own experience and determine how many times an individual with .01 grams of a substance has had
their blood drawn and/or their home searched. The State could not attempt to justify the blood draw
28
6
based on a DUI allegation since it is well over the two hour rule from the time of the stop to the time
2
of the blood draw. Imagine every time an individual is stopped in a vehicle and has a small amount
of substance in their vehicle that search warrants are issued for their residences. Again, this
argument is made independent of the fact that the argument is set forth herein that there was no
probable cause to search the residences. What is demonstrated, however, is a desire by the
Magistrate to assist in warrants that were questionable to say the least. Part of the original request
herein is for an evidentiary hearing and it was suggested that the Honorable Judge William Kephart
might be subpoenaed for purposes of this hearing. Based upon information and belief there is a
normal procedure utilized both in the Justice Court level and the District Court level for purposes
10
of obtaining search warrants. The normal procedure might be that there is an on duty Justice of the
11
Peace for purposes of se arch war-rants. It is not known whether or not, for example, Judge Kephart
12
was sought out specifically for these warrants and only an evidentiary hearing will determine that.
13
Preliminary to that, however, the Court is asked to inquire who the on duty Justice of the Peace was
14
at the time of the execution of the warrant and the application for the warrant. That may in part seem
15
to put the issue to rest. - When a Magistrate, however, wishes members of the Las Vegas
16
Metropolitan Police Department "Good Luck" as was done in this case on it's face it appears at least
17
that the neutrality requirement has been abolished. Not one thing is present in the affidavits in
18
support of the search warrants for the residences that presents probable cause to believe that any
19 11 substances will be lor;', terl within the residence or residences.

20
21
2?
2:3
24
25
26
27
28
7

CONCLUSION
1
2
For the above indicated reasons, it is requested that this Honorable Court include within it's
schedule an evidentiary hearing on the issues presented herein as well as the preliminary hearing.
4
5
DATED this
I tlay of June, 2011.

6
7
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10
WILLIAM B. TERRY,TS
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)0
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8
1
2
3
RECEIPT OF COPY
RECEIPT OF COPY of the foregoing MOTION TO SUPPRESS AND REQUEST FOR
EVIDENTIARY HEA I NC is hereby acknowledged thisoli Ciay of June, 2011.
4
5
//
e
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7
/ATTORNEY GENERAL
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19 P,
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9
CC
322
Sparks v. State
(104 Nev.
In Ake v. Oklahoma, 470 U.S. 68, 80 (1985), the Supreme

Court recognized that the "assistance of a psychiatrist may well
be crucial to the defendant's ability to marshal his defense." The
Court concluded, therefore, that where it is likely that the defend-,
ant's sanity will be a significant factor in his defense, the State
must afford the defendant the assistance of a psychiatrist in the
preparation of his defense. 470 U.S. at 83.
Appellant, in fact, had the assistance of Dr: O'Gorman in the
preparation of her defense, specifically the defense of temporary
insanity; however, Dr. O'Gorman's testimony was severely
restricted. Appellant was forced to pose 45 hypothetical facts as a
foundation for her expert's opinion. The laborsome direct examination of Dr. O'Gorman and the State's dissection of the hypothetical, foundational facts obviously deflated Dr. O'Gorman's
opinion. .
While the "admissibility of expert testimony is a matter for the
sound discretion of the trial judge," Townsend v. State, 103- Nev.
113, 119, 734 P.2d 705, 709 (1987), we have held that a reference to polygraphs is not necessarily' reversible error, Aguilar v.
State, 98 Nev. 18, 639 P.2d 533 (1982). Dr. O'Gorman's qualification to testify as an expert has not been questioned, yet he was
restricted in his ability to express his opinion relating to appellant's mental condition, being restricted to an opinion based on
hypothetical facts relating to a hypothetical individual. We hold
that the district court abused its discretion in so restricting the
examination of appellant's expert.
Plea Bargain Agreements
[Headnote 5]
Prior to trial, a plea agreement was entered into between the

State and appellant in which appellant agreed to plead guilty to
voluntary manslaughter. This agreement was rejected by the court
without reason. Appellant then petitioned for a writ of mandamus. In response, the district court stated that the plea agreement
had not been formally presented. In denying that petition, we
stated:
If the district court concludes there is a plea agreement
between the parties, it shall conduct a plea hearing to decide
whether to accept the plea, in order to comply with its
obligation to consider seriously the proffered plea. See Sturrock v. State, 95 Nev. 938, 604 P.2d 341 (1979). If the
district court disapproves the proposed agreement, it shall
state the reasons for its disapproval on the record. See, e.g.,
United States v. Ammidown, 497 F.2d 615 (D.C.Cir. 1973);
Hanley v. State, 97 Nev. 130, 624 P.2d 1387 (1981).
June 19881
Sparks v. Siate
323
Thereafter, the State withdrew its offer, but during trial the
State again offered to negotiate. The trial judge, however, again
refused to accept the agreement. At sentencing the district court
stated its reasons for rejecting the agreement:
In fact, very early on, the State apparently bought that
concept [that appellant did not know right from wrong, and
had an uncontrollable urge]. They were ready to plead you
guilty to manslaughter, and even offered that in the middle of
the trial. The Court stated, no, that was an issue for the jury
to decide and not for them.
In Amin/down, after acknowledging that the trial court's
acceptance of a plea agreement is discretionary, see also NRS
174.035(1); Hanley v. State, 97 Nev. 130, 624 R2d 1387 (1981),
Sturrock v. State,. 95 Nev. 938, 604 P.2d 341 (1979), the court
stated that the trial judge in rejecting an agreed plea must
provide a reasoned exercise of discretion," Ammidown, 497 F 2d
at 622.
The authority has been granted to the judge to assure protection of the public Interest, and this in turn involves one or
more of the following components (a) fairness to the
defense, such as protection against harassment, (b) fairness
to the prosecution interest, as in avoiding a disposition that
does not serve due and legitimate prosecutorial interests; (c)
protection of the sentencing authority reserved to the judge.
The judge's statement or opinion must Identify the particular
interest that leads him to require an unwilling defendant and
prosecution to go to trial.
The judge may withhold approval if he finds that the prosecutor has faded to give consideration to factors that must be
given consideration in the public interest, factors such as the
riptp rren t aspertc t-Nf the crirmnal laur 14nwever trial jitriges
are not free to withhold approval of guilty pleas on this basis
merely because their conception of the public interest differs
from that of the prosecuting attorney. The question is not
what the judge would do if he were the prosecuting attorney,
but whether he can say that the action of the prosecuting
attorney is such a departure from sound prosecutorial principle as to mark it an abuse of prosecutorial discretion.
Ammidown, 497 F.2d 622. (Emphasis added.)
The reasons given by the trial judge in this case reflect nothing
other than the judge's opinion of the public interest. Moreover,
we find that the trial court's reasoningthat the jury must determine which offense, if any, the defendant is guilty ofis insuffi-
Sparks v. State
324
[104 Nev.
cient to support the district court's rejection of the agreement.

Therefore, we hold that the trial judge abused his discretion.
Conclusion
We have carefully considered the assignments of error raised
by appellant, and we conclude that the State's mishandling of
evidence and the errors of the district court require that the
judgment of conviction be reversed. Additionally, we vacate the
$450 fine imposed upon defense counsel as a sanction for Dr.
O'Gorman's inadvertent mention of the word "polygraph."
AUDREY JUDSON, APPELLANT, v CAMELOT FOOD,

INC., DBA ROUNDTABLE PIZZA, ED VARGO, INDIVIDUALLY AND DOING BUSINESS AS DESIGN SERVICES,
ROBERT DULIK, INDIVIDUALLY AND DOING BUSINESS
As HACKMILL PRODUCTS, RESPONDENTS
No 18243
June 30, 1988
756 P.2d 1198
Appeal from summary judgment. First Judicial District Court,

Carson City; Michael E. Fondi, Judge.
Restaurant patron brought action against restaurant for personal injuries sustained in collapse of bench. Summary judgment
for restaurant was granted by the district court and patron
appealed. The Supreme Court, STEFFEN, J., held that: (1) there
were issues of fact precluding summary judgment as to whether
restaurant's inspections of the bench were done in a reasonable
manner, and (2) the case was appropriate for application of the
doctrine of res ipsa loquitur.
eversed and remanded.
SPRINGER, J., dissented.
Kenneth J. Jordan, Carson City, for Appellant.

Beckley, Singleton, DeLanoy, Jemison & List and Stephen S.
Kent; Shamberger, Georgeson, McQuaid & Thompson; Erickson,
Thorpe, Swainston & Cobb, Reno, for Respondents.
1, JUDGMENT.
In action against restaurant for personal injuries sustained in collapse of wooden bench, there were issues of fact precluding summary
judgment as to whether restaurant's inspections of the bench were done
in a reasonable manner, even if they were done weekly, despite failure of
Exhibit "D"
LAS VEGAS METROPOUTAN POUCE DEPARTMENT
SEMI=
COCAINE
PRELIMINARY FIELD TEST CHECKLIST AND RESULTS
Subj
Event
SOAAE52-1- Dims.D
4 3503
ICI
klo3kci-7-ct2/
Ds
3_11,AINA
len
Pkg
EX 4r,11NEFi SHAtI READ PERFOPI%1 AND CHECK EACH APPLICABLE STEP
.01
WEIGHT:
grams / g NET GROSS (check one)
1. Officer's opinion based upon circumstances of seizure and appearance of substance indicates
cocaine.
2. Hold test kit so that writing on kit faces operator in a readable position.
3. Check that all three ampoules within the kit are intact and are located in the left to right color sequence
of pink, clear, clear.
4.
Remove plastic clip, open kit, and insert sample using uncontaminated instrument.
5.
Replace plastic clip, closing kit.
11.g
6. Break pink ampoule.
)k
7. Agitate sample gently until color develops.
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8. Observe development of blue color. (If no color, go to step 15.)

9.
Rm.* clear middle ampoule.

I
10. Agitate sample gently until color becomes pink. (If no pink color, go to step 15.)
11. Break remaining clear ampoule.
12. Agitate sample gently until color layers separate.
Nift
13. Observe two levels of color, upper level pink, lower level blue.
ffik
14. Result POSITIVE for cocaine.
OR
15. Result INCONCLUSIVE for cocaine.
SIGNATURES
LVIVIRO 151 (REV 4-02)
DISTRIBUTION: WHITE RECORDS YEIJ.OW NARCOTICS PINK PLACE INSIDE EVIDENCE SAO
)
00013
LI'S%
qe:
,L
I=MEIZE
Exhibit "E"
PRESENTENCE INVEOGATION REPORT

DAVID SCHUBERT
CCN:C275700
Page 4
p. PLEA NEGOTIATIQNS
1. Upon the tender of the defendant's plea of guilty, the State will not oppose a stayed adjudication and
probation pursuant to NRS 453.3363, not to exceed three (3) years, with the following conditions:
a. Complete 200 hours community service;
b. Attend and successfully complete of a program of treatment and rehabilitation pursuant to NRS
453.580 and
c. Stay out of trouble
2. (xi lieu of assignment to the Eighth Judicial District Court program of treatment (i.e. "Drug Court''), the
State will not oppose Defendant David Schubert's request for assignment to an appropriate facility l'or
the treatment of abuse of alcohol or drugs which is certified by the Division of Mental tiealth and
Developmental Services of the Department of Health and Human Services with the added condition of
frequent urinalysis to determine that the Defendant is not using a controlled substance.
3. I, DAVID SCHUBERT, further agree to the forfeiture of any and all weapons or any interest in any
weapons seized and/or impounded in connection with the instant case and/ or any other case negotiated
in whole or in part in conjunction with this plea agreement, including, but not limited to: one (1) Glock
34, Serial Number MEP178.
4. The defendant understands that if the State of Nevada has agreed to recommend or stipulate to a
particular sentence or has agreed not to present argument regarding the sentence, or agreed not to
oppose a particular sentence, any such agreement by the State is contingent upon the defendant's
appearance in court on the initial sentencing date and any subsequent date if the sentencing is
continued. The defendant understands that if he fails to appear for the scheduled sentencing date or he
commits a new criminal offense prior to the sentencing the State of Nevada would regain the full right
to argue for any lawful sentence.
S
190 Day Regimental Discipline Program: NiA
Deferred Sentence Per NRS 4513363: Yes

FEES
Administrative Assessment: $25
Chemical/Drug Analysis: $60
Domestic Violence: N/A
Extradition: N/A
DNA: $150 and submit for

genetic testing
SENTENCE
Minimum Term: 12 months
Consecutive to/Concurrent with: N/A
Fine: $5,000
Location: NDOC
Maximum Term: 30 months
Probation Recommended: Yes Probation Tema: NTE 3 years
Mandatory V'Totiiatinw: vc.<
Restitution: N/A
Exhibit "F"
Electronically Filed
03/02/2012 03:35:47 PM
RTRAN
CLERK OF THE COURT
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DISTRICT COURT
Plaintiff,
VS.
DAVID SCHUBERT,
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Defendant.
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CASE NO. C275700 - 1

DEPT. V
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BEFORE THE HONORABLE CAROLYN ELLSWORTH, DISTRICT COURT JUDGE
MONDAY, FEBRUARY 27, 2012

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TRANSCRIPT OF PROCEEDINGS
SENTENCING
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APPEARANCES:
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For the State:
THOM GOVER, ESQ.

Senior Deputy Attorney General
For the Defendant:
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RECORDED BY: LARA CORCORAN, COURT RECORDER
Las Vegas, Nevada, Monday, February 27, 2012 at 10:17 a.m.
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THE COURT: Case number 0275700, State of Nevada versus David
Schubert. This is on for sentencing. Is there any illegal cause or reason why we
cannot proceed to sentencing at this time?
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MR. TERRY: Not on our behalf, Your Honor. Good morning, William Terry
appearing, Your Honor, with Mr. Schubert.
MR. GOVER: None from the State, Your Honor.
THE COURT: All right by virtue of your plea of guilty in this case to the crime
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of unlawful possession of a controlled substance, not for the purpose of sale, a
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felony, I hereby adjudge you guilty of that offense, and State, did you want to say
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anything? I understand you're not opposed to a stayed adjudication and probation
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pursuant to 453.3363 treatment.
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MR. GOVER: That's a correct position, Your Honor, and we have nothing
further to state, except what's been stated in the guilty plea agreement.
THE COURT: All right. Mr. Schubert, before your attorney speaks on your
behalf, vvould you like to address the Court?
THE DEFENDANT: Thank you, Your Honor. I'd just like to apologize as to
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what happened. It has been a tragedy for both myself and my family. I know it has
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affected a lot of people, and I apologize to the Court.
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THE COURT: Okay. Is that it? Counsel?
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MR. TERRY: Morning, Your Honor, William Terry appearing.
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THE COURT: Morning.
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MR. TERRY: Your Honor, before I address the Court, I noted that when you
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started the proceedings, you adjudicated my client guilty of a felony. And that
causes me concern because I haven't addressed the Court yet.
THE COURT: All right. I'll defer that until I hear your --
MR. TERRY: All right. And I will tell the Court that I am of -- I'm not one that's
normally nervous when I appear in front of a court for sentencing, but I'm nervous
today, and the Court has given me reason to be nervous.
The Court questioned the resolution in this case. The Court always has
the power to do that. But the Court went a little bit further in that. The Court
questioned the plea in the first place, and I understand judicial discretion, Your
Honor, that is not the issue.
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What I'm asking the Court to do, however, is to follow the terms of not
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just the resolution that had been worked out, but also what the recommendation, at
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least in part is, of the Department of Parole and Probation.
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As we appear before, Your Honor, I could use the clich things that is
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often used; my client has no prior criminal record, etcetera, etcetera, and I recognize
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that he comes before the Court in somewhat of a unique posture because he is an
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attorney, a member of the bar, and he wouldn't be an attorney if he had a prior --
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Qny type of 'serious t;tpe of offense.
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When he addresses the Court, he addresses the Court in a very quick
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way, but he has lived with what he has caused since the inception of this case,
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which was in March of 2011.
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I feel it a little bit necessary to go through the terms of the resolution
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only because there seems to be a feeling that this is a very simplistic easy
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resolution. It isn't. It calls upon him to do certain things, and if he doesn't do those
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certain things, then even if Your Honor is gracious enough to provide him with the
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deferred prosecution, then he will suffer further consequences if he doesn't follow
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exactly what the terms are that had been worked out with the Attorney General's
Office, and that which we hope the Court will approve, and as the 200 hours of
community service, the treatment program, the random UA's, and continuing in the
programs that he's attended.
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Now, almost immediately after his arrest, Your Honor, he went into an
impatient program, and he has been in an outpatient program ever since that point
in time, roughly May; and I provided counsel with a copy of certain letters. If I may
approach? I'll summarize basically what these say, which is that he has been in a
program and has been doing UA/NA since at least May, and the reason we say May
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is because that's when he got out of the inpatient program. In court, and I won't --
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I'll give the Court a minute, sorry.
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THE COURT: Thank you.
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MR. TERRY: And I realize I should've provided these to you on a prior
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occasion, Judge. We were hoping to get an update, but we did not.
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THE COURT: Okay.
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MR. TERRY: Your Honor, in court, I'm not going to mention his name, but he
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is present in court, is the attorney that currently employs Mr. Schubert. He has
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authorized me to represent to the Court that he had gone through an illness of a
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medical nature that caused him to be out of his office for approximately eight weeks,
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and he indicates that Mr. Schubert basically saved his firm. He has been with -- Mr.
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Schubert has been with this lawyer since September. He makes court appearances
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daily, and the reason I bring that to the Court's attention is, if he continued to have
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issues or problems, he would not be able to function in that light.
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Back to the fact that the Court had an issue with the terms of the
resolution. The Nevada Revised Statutes, Your Honor, recognize that there are
situations where the Courts are better off treating an individual, as opposed to
treating an individual as a convicted person. We have Mental Health Court. We
have the SOP Court, where individuals that are charged with third offense DUI's are
given an opportunity if they can complete the SOP Court, that they will not be
adjudicated guilty on a third offense DUI. These are individuals that have been
before a court before. We have the moderate offender program, somewhat less
than the SOP Program, which allows individuals that have been recidivists to
likewise be given that second opportunity.
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The statutes allow for second opportunities, and we're asking the Court
to allow for a second opportunity for Mr. Schubert.
We are all embarrassed when we have this type of situation that arises,
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but there are cases where the embarrassment is much greater. I represent an
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individual that goes into the Walmart and steals something and gets caught, and it's
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a misdemeanor. That's an embarrassment because he stole in the first place, and
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he got caught. But, when you have an individual like Mr. Schubert who was, and I
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might say, still is a respected member of the bar, who did as good a job as he did for
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as long a period of time as he did, sometimes that type of person falls further than
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the individual that I described in the Wa!mart scenario. But, the similarity is that they
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both suffer the consequences of having to ultimately appear before a court.
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We're simply asking you to give Mr. Schubert the opportunity that both the
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Attorney General's Office has recommended to Your Honor; and oddly enough, that
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the Department of Parole and Probation has recommended to Your Honor. In their
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report to you, they have taken into consideration this individual that appears in front
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of you, and they likewise have suggested to the Court, the deferred prosecution.
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Now we fully recognize the Court does not have to follow that, but the
consequences of you're not following it are exceedingly severe. I felt it was -- I

thought it was interesting that when the State provided their points and authorities to
you in reference to whether or not this was a reasonable resolution and whether or
not the Court should accept the plea in the first place, that they cited other cases,
where the penalties have been the same, and those individuals have been given an
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opportunity.
Now, I thought it was interesting because the individuals that they cited
are also somewhat of individuals that -- they become the focus of an attention in the
court system because of a different type of status. They were given an opportunity,
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and I would ask the Court to give Mr. Schubert the same opportunity. He won't fail
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it. It calls for him to continue to do things, Your Honor. It's not simply, we get a fine,
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we walk out, there's an adjudication, etcetera. If he doesn't comply with the Court's
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directives, we'll be back before the Court. Your Honor will have the authority, as you
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always do, to revoke the deferred prosecution.
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I would ask that you follow the terms of the resolution. I would ask that
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you follow what the Department of Parole and Probation has suggested. A period of
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incarceration as a taste of what it's like to ao to jail is. not deserved in 4dlis case,
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because of the humiliation that he has gone through. The humiliation is one thing,
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but what he has also demonstrated to the Court that is that he has attempted to
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rectify that situation by trying to do a good job as a lawyer and actually doing a good
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job as a lawyer.
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Your Honor sees individuals before you everyday, and a Judge
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would've known whether or not this individual standing to my right had any type of
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an issue when they made an appearance. That is not the situation. We'd ask that
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the Court allow the resolution that has been suggested to Your Honor to go through,
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and allow my client the opportunity of the deferred prosecution.

THE COURT: Thank you, Mr. Terry. As usual, you're articulate. You make
good points. You are one of the finest criminal defense lawyers in the State. But,
as you know in this case, obviously, the reason I questioned the plea in this matter
was because it bound the Court to a sentence which requires probation, and the
initial charges that were brought against Mr. Schubert were very serious charges.
That is why we had -- why I questioned the Attorney General extensively in this
case. That's why I allowed you to brief it further. And, as a result, and as you know
from both what I said before I allowed the briefing and at the time when I made my
decision concerning whether I was required to accept the plea, our Supreme Court
in this State does not give the Courts the unfettered discretion to reject a plea just
because the Judge doesn't like the plea. There has to be findings that there was an
intentional prosecutorial abuse of discretion, and under the facts as they were
briefed to this court, I did not make a finding that in fact I could set aside the plea.
So you come -- your client comes to me, Mr. Schubert comes to me,
with a pre-sentence investigation charged with a crime that requires that I give him
probation. I think that you know, having sat in my rs ,-,urt enough times and having
represented other clients in my court, is that I look at every individual differently,
separately. I look at their particular circumstances. This is not a one-size fits-all.
Judges discretion in sentencing is extremely important, and so as I look at this case,
and I decide whether I want to in fact allow treatment of this case where adjudication
is deferred, and he would have an opportunity in fact to not be convicted of a crime,
I look at lots of things.
I look at the fact that this is not a person without an education, as I see
many Defendants come before me who are high school dropouts and poor in
poverty. What I see is an attorney who is highly educated, who had a highly-paid
job, who comes before the Department of Parole and Probation and says that he
does not have a drug problem. He says he further states that he does not believe
that drugs are a problem for him. He says that -- he told the Department of Parole
and Probation that he started using cocaine and used it from September 2010
through March of 2011, and his last use was when he was arrested for this offense.
I would also note that of course he was having someone else go and
buy these drugs for him. Now, this is at a time when he is a prosecutor in this State,
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having taken an oath before God to uphold the laws of this State, and he -- instead
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he goes out into our community and decides he's going to start taking cocaine,
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using a drug that he knows is illegal. And he does that by aiding and abetting
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someone else and encouraging that person to engage in sale of controlled
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substance, a serious felony, and putting that person at risk because he wants to do
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cocaine, while he's also prosecuting people for those very types of offenses. This is
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offensive. He is a disgrace to his oath as a prosecutor, as a lawyer.
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The fact that he has done a good job since having been removed as a
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prosecutor has brought disrepute to the bar at large, so that lawyers feel that our
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justice system is looked at as if there is favoritism granted to people who are
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lawyers because they're lawyers. Now that may not be the case, but while the AG
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in their points and authorities pointed to other cases where special treatment was
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given or the person was given a light slap on the wrist, everybody's different, and I
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don't know what those other judges were thinking when they sentenced in those
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cases. It's like I tell my kids, it's not about what old Johnny did down the street, it's
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about you, and this case, Mr. Schubert, is about you.
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You received a very favorable plea negotiation in this case, and it's
attributable all to your lawyer, to Mr. Terry. That's why I know you hired him.
So, in accordance with the laws of the State of Nevada, I do adjudge
you guilty of a felony in this case. I am not going to give the special treatment. I'm
going to assess you the administrative assessment fee of $25, a chemical drug
analysis fee of $60, and the DNA testing fee of $150.
You are sentenced to a minimum term of 16 months, a maximum term
of 40 months in the Nevada Department of Corrections, that pursuant to law is
suspended, and you are going to be placed on probation for a three-year fixed
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period of time.
Special conditions of your probation: You will serve -MR. TERRY: Your Honor, I don't mean to interrupt the Court. May the cuffs
be removed from my client? He has not been sentenced yet.
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THE COURT: -- Mr. Marshal.
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THE MARSHAL: Yes, Your Honor.
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THE COURT: Yes.
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MP,. TERRY: Thank ,jou, Your Honor.
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THE COURT: All right. You will enter and successfully complete, and I
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understand you're already in some type of substance abuse program, which you've
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indicated that you believe you have an alcohol problem. I would also point out that
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as a lawyer you know that the bar, and knew at the time you made all these
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decisions, that the bar has in fact a program for lawyers to help other lawyers, and
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that you could have done that, but instead you chose to violate the law.
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So, you are to enter and successfully complete a substance abuse

treatment program that is deemed appropriate by the Department of Parole and
Probation. You are to complete at least 16 hours of community service per month
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up to the maximum amount of community service that is allowed pursuant to statute,
during the course of your probation.
You are to pay a $5,000 fine as also you're sentenced in this case, and
you'll pay that during the course of your probation in equal installments, as deemed
appropriate by the Department of Parole and Probation.
You are to abstain from the use of ingestion of or purchase of alcohol

during the course of your probation, since you've indicated that you believe that
alcohol is a problem.
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You are to -- will be submitting to random urinalysis tests during the

course of your probation.
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And finally, you are to serve the first nine months of your probation in
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the custody of the Clark County Detention Center. And, is there any credit for time
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served? One day, credit for time served.
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MR. GOVER: Your Honor, as to the forfeiture of the weapon, that was part of
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the plea agreement, we would ask that since Mr. Schubert would be a prohibited
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person, now being a felon, And ;415.-:n At the time of haintl a user of controlled
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substances that, that order be entered by the Court, forfeiting the weapon.
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THE COURT: That's my understanding. That was part of the agreement, and
the weapon will be forfeited.
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MR. GOVER: Thank you, Your Honor.
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MR. TERRY: Very well, Your Honor.
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THE COURT: Do you wish to have him remanded today or would you like
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time?
MR. TERRY: Well, Your Honor sentenced him to a period of incarceration of
nine months. If I were to ask for weekends, that would be ludicrous. So at a
minimum, I would ask for 30 days to self-surrender.
THE COURT: No I don't -- 30 days is not what I had in mind.
MR. TERRY: Two weeks?
THE COURT: Two weeks, surrender, and you'll do that.
THE CLERK: He'll have to come back into court though.
THE COURT: Yes. You're going to have to come back into court, and we'll
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take you into custody at that time. Two weeks.

THE CLERK: March 12 th .
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MR. GOVER: 9 a.m.?
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THE COURT: 9 a.m.
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MR. GOVER: Thank you, Your Honor.
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MR. TERRY: Thank you, Your Honor.
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[Proceedings concluded at 10:38:50 a.m.]
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ATTEST: I do hereby certify that I have truly and correctly transcribed the audio/video
proceedings in the above-entitled case to the best of my ability.
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'44644
J.1
Yytette G. Sison-Britt
Court Recorder/Transcriber
Exhibit "2"

(702) 385-0799
(702) 385-9788 (Fax)
InfoWilliamTerrvLaw.com
FILFr,
KIR 6 4 07 PP 12
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CLEF:
COURT

Plaintiff,
vs.
DAVID SCHUBERT,
Defendant.
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CASE NO. C275700

DEPT. NO. V
HEARING DATE:
HEARING TIME:
03/i/12
9:00 A.M.
MOTION FOR STAY OF PROCEEDINGS, MOTION TO SET ASIDE ADJUDICATION

OF GUILT OR, IN THE ALTERNATIVE, TO STAY THE ADJUDICATION OF GUILT,
MOTION TO STAY COMMENCEMENT OF INCARCERATION, MOTION FOR
EVIDENTIARY HEARING AND MOTION TO SET ASIDE SENTENCING ON THE
GROUNDS THAT IT WAS AN ILLEGAL SENTENCE
COMES NOW the Defendant, DAVID SCHUBERT, by and his counsel, WILLIAM B.
TERRY, ESQ., of the law offices of WILLIAM B. TERRY, CHARTERED and moves that this
Honorable Court stay the proceedings, set aside adjudication of guilt or, in the alternative, to stay
the adjudication of guilt, stay commencement of incarceration, set an evidentiary hearing and set
aside sentencing on the grounds that it was an illegal sentence.
This Motion is made and based upon the pleadings and papers on file herein, the attached
analysis of facts in support hereof, and any oral arguments as may be presented at the hearing in this
matter.
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WILLIAM B. TE Y, ESQ.
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NOTICE OF MOTION
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TO: STATE OF NEVADA, Plaintiff, and
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TO: CLARK COUNTY DISTRICT ATTORNEY
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Please take notice that the undersigned will bring the foregoing motion on for hearing before
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this Court in Department V on the ,.th
day of March, 2012, at the hour of 9:00

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WILLIAM B. TERyi", ESQ.

Nevada State Bar No. 001028
(702) 385-0799
a.m.
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ANALYSIS OF FACTS
This Honorable Court has already sentenced David Schubert. The Court has already
adjudicated him guilty of a felony and imposed a period of incarceration as a condition of probation.
He is set to surrender on March 12, 2012 in open court. The defense need not reiterate facts which
are already known to this Honorable Court.
The Defendant Schubert and his counsel have caused to be filed a motion to recuse this
Honorable Court from any further consideration of the instant case. The problem is that mr.
Schubert is set to commence serving his period of incarceration on March 12, 2012. The Court is
asked to do a number of things. First, the Court is asked to stay all proceedings. This would include
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the signing of any Judgment of Conviction. If a Judgment of Conviction has been signed then the
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Court is asked to stay the effects of the Judgment of conviction. The court is asked to stay the
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directive to Mr. Schubert to be incarcerated. It is also requested that an evidentiary hearing be set
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by a court other than this court or if that motion is denied this Court so that the Defendant may or
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adequately demonstrate a bias and prejudice that existed in the instant case. It is respectfully
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suggested that the prejudice emanated from at least two factors that occurred at the time of
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sentencing. Those factors are (1) that the Court had adjudicated Mr. Schubert guilty a felony before
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allowing the defense to address the Court, and (2) the fact that the Marshal handcuffed Mr. Schubert
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prior to the time of the completion of the sentencing pronouncement by this Court and absolutely
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prior to the time that the Court ordered any form of incarceration. It is further suggested that the
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Court imposed an illegal sentence upon Mr. Schubert by directing that his period of probation be for
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a fixed temi of three years. It is respectfully suggested that the Court failed to take into consideration
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the statutory pronouncements dealing with good time credits for an individual that is on probation.
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These are mandatory provisions and not ones that can be disregarded by the Court. As the Court is
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aware, Mr. Schubert is an attorney. As such, he is required to report any conviction to the State Bar
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within a thirty day period because the issue of impartiality has been raised it is requested that this
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Court issue the stay or, alternatively, not sign any Judgment of Conviction. It is further represented
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of this Court that even if the motion to disqualify this Court based on actual bias and prejudice is not
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granted by the District Court Chief Judge or her designee it is the intent of the Defendant herein to
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file a Petition for Writ of Mandamus with the Nevada Supreme Court to re-raise the same issues.
It is for this reason that the evidentiary hearing is necessary.
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CONCLUSION
For the above indicated reasons the temporary prayer for relief is asked to be granted an
evidentiary hearing be set either before this Honorable Court or before a different court.
DATED this
day of March, 2012.

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ESQ.
wiLLrAm B. TE
Nevada Bar No i 01028
WILLIA ; . TERRY, CHARTERED
T as VegqS, Ned 2 89101
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Exhibit "3"
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AR 12 2 01PN '12
DISTRICT COURT
, Lp
CLEF
:r:OURT
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The State of Nevada,
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Plaintiff,
v.
David Schubert, ID#0843303,
Defendant.
Case No. C275700
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Dept. V
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AFFIDAVIT IN ANSWER TO DEFENDANT'S MOTION

TO DISQUALIFY THE HONORABLE CAROLYN ELLSWORTH
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AFFIDAVIT
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STATE OF NEVADA
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COUNTY OF CLARK
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JUDGE CAROLYN ELLSWORTH, being first duly sworn, deposes

and says:
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That David Schubert, a defendant in criminal case
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C275700 which is currently pending in my department on a date
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for surrender subsequent to sentencing, has filed, through his
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counsel, William B. Terry, Esq., a Petition and Motion to
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Disqualify Judge. Said Petition and Motion seeks to revoke the
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sentence imposed by me and have the case reassigned to a
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different judge for sentencing.
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2.
Defendant's Petition and Motion argues that I was
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actually biased and prejudiced in violation of NRS 1.230 and
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Canon 3 of the Nevada Code of Judicial Conduct, and that said
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alleged bias was demonstrated because I did not follow the
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recommendation of the State that adjudication be stayed pursuant
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to NRS 453.3363, but instead adjudicated Mr. Schubert guilty of
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Unlawful Possession of a Controlled Substance not for Purposes
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of Sale, and sentenced him to fine of $5,000.00 and a term of a
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maximum of 40 months and a minimum of 16 months in the Nevada
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Department of Corrections. Pursuant to the statute requiring
mandatory probation, I placed him on probation for a fixed
period of three years, and imposed special conditions of
probation including entering and completing any substance abuse
counseling program deemed appropriate by the Division of Parole
& Probation, completing 16 hours of community service per month
each month up to the maximum amount allowed by statute, paying
the fine in equal monthly installments over the course of his
probation, refraining from the use, possession or control of any
alcoholic beverages, submission to random urinalysis, at his
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expense, during the course of probation, as deemed necessary by
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the Division of Parole & Probation; and to serve the first nine
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(9) months of probation in the Clark County Detention Center,
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with credit for time served of one (1) day.

3.
Said sentence was within the statutory allowances for
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sentencing. In fact, the Guilty Plea Agreement signed by Mr.
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Schubert and his counsel as well as the Deputy Attorney General
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on Sept e mber 7, 2011, .expressly acknowledged that Mr. Schubert
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understood that his sentence would be determined by the court
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within the limits prescribed by statute and that even if his
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attorney "or the State of Nevada or both recommend any specific
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punishment to the court, the court is not obligated to accept
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the recommendation."
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4.
That I determined after a canvass of the prosecuting
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attorney, consideration of written briefs of the parties, oral
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argument, and the factors set for in Sandy v. Fifth Judicial
District Court, 113 Nev. 435, 935 P.2d 1148, that the guilty
plea agreement which ultimately resulted in the State dropping
the original charges of Possession of Firearm by a Prohibited
Person, Conspiracy to Violate the Uniform Controlled Substance
Act, and Unlawful Use of a Controlled Substance, was not the
result of an abuse of prosecutorial discretion, and that the
court would have the discretion to sentence within the
parameters of the charge which resulted from the plea
negotiation.
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5. That I have no bias or prejudice against or for Mr.

Schubert. I do not know Mr. Schubert aside from his appearances
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in my court on Case C275700, and knew nothing about him aside
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from what was provided in the pre-sentence investigation report,
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the arguments of his counsel at the time of sentencing, his own
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brief remarks at sentencing, and a brief report from a drug
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treatment counselor which was given to me by defense counsel at
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th time of sentencing .
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6. While I had certainly reviewed the pre-sentence
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investigation report prior to the time of the sentencing hearing
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and had formed certain impressions therefrom, I did not make the
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final decision regarding sentencing until I had heard from Mr.
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Schubert and his counsel at the time of the sentencing hearing.
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Mr. Schubert's sentencing hearing, in that regard, was no
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different than all other sentencing hearings I conduct in my
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department. In each and every case, I review the information
concerning the facts and circumstances of the underlying crime,
the individual facts and circumstances relating to the person I
am sentencing, and I consider any additional facts and
circumstances as related by the defendant and his or her counsel
at the time of sentencing.
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I do not discuss my thoughts regarding sentencing of a
defendant with anyone prior to sentencing, and that includes my
Marshal. I did not ask my Marshal to take Mr. Schubert into
custody, and in fact did not remand Mr. Schubert to custody at
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the time of sentencing, but instead asked defense counsel if he
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would like to set a time for surrender.
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8.
I did not realize that my Marshal was moving to place
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handcuffs on Mr. Schubert while I was in the process of
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sentencing him because my view of where the Marshal stands in
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Courtroom 16A, as well as a goodly portion of the defense table,
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is blocked from my view by a computer screen.
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immeulauey admonished my Marshal concurrently with
Mr. Terry's protests, and the handcuffs were removed.

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While it is unfortunate that this mistake was
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perceived by the defendant as bias against him, I believe that
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it was the result of my Marshal being relatively new to his
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position and his attempt to react proactively to what he thought
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my order would be. This was the explanation of my Marshal when I
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inquired of him.
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11. That I sentenced Mr. Schubert as I did after
consideration of all of the facts and circumstances surrounding
him and his case, and for no improper reasons.
Further affiant sayeth naught.
Dated this
Pkkday
of March, 2012
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Judge Varolyn Ellsworth

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SUBSCRIBED ancVSWORN to
by me this /4V /-2-/- day of March, 2012.
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the
day of March 2012, he/sh
served the foregoing Affidavit by faxing, mailing, or electronically serving a copy t
counsel as listed below:
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Name

William B. Terry,
Chartered
Thom Gover, Esq.
Office of the Attorney
General
Party
Phone
Service Method
Attorney for David

Schubert
(702) 385-0799
Facsimile:
(702) 385-9788
Attorney for State of

Nevada
(702) 486-3120
Facsimile:
(702) 486-2377
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JANICE LISTON
JUDICIAL EXECUTIVE ASSISTANT
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AFFIRMATION
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Pursuant to NRS 239B.030

The undersigned does hereby affirm that the preceding Affidavit filed in District
Court case number C275700 DOES NOT contain the social security number of
any person.
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/s/ Carolyn Ellsworth

District Court Judge
Date
03/12/12
Exhibit "4"
002/08
kJ
DECN
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STATE OF NEVADA,
Plaintiff,
vs,
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DAVID SCHUBERT,
Defendant.
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) Case No.: C-11-275700-1
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) Dept. No. IX
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ODER DENYING DEFENDANT'S MOTION TO DISQVALIFX
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MIDGE CAROLYN ELLS WORTH
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Defendant David Schubert submitted his Motion to Disqualify Judge Carolyn Ellsworth
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on March 5, 2012, which was then submitted to the Chief Judge. Judge Ellsworth filed an
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Affidavit in Answer to Defendant's Motion to Disqualify the Honorable Carolyn Ellsworth on
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March 12, 2012, This Court, after considering the papers and pleadings on file, as well as the
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oral arguments heard on March 15, 2012, finds that the Motion to Disqualify should be denied.
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Defendant's Motion to Disqualify does not establish a valid basis to disqualify Judge Ellsworth
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under NRS 1.230, NRS 1.235, or Rule 2,11 of the Revised Nevada Code of Judicial Conduct
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(the "Code"),' which govern disqualification of a judge.
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In support of his Motion to Disqualify, Defendant asserts that two specific events that
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occurred at the time of sentencing demonstrate actual and/or implied bias on the part of Judge
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Ellsworth, such that her alleged bias superseded independent judicial review and independent
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NEI/. REV. STAT. 2.120 authorizes the Nevada Supreme Court to make rules
for its own government and the government of its officers. As a result, the
Revised Nevada Code of Judicial Conduct is binding.
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determination of an appropriate sentence, 2 This Court will address each of these two events in
turn.
First, Defendant suggests that because Judge Ellsworth adjudicated Defendant guilty at
the start of the sentencing, despite the fact that Defendant and the Attorney General's Office
agreed to defer adjudication, any arguments made by defense counsel would not be considered
by her Honor. Defendant avers that the Judge's remarks regarding the adjudication of guilt
demonstrate that Judge Ellsworth closed her mind to the presentation of all the evidence,
establishing a sufficient basis for disqualification. In support of this averment, Defendant cites
to Cameron v. State, 114 Nev. 1281, 1283, 968 P.2d 1169, 1171 (1998), where the Nevada
Supreme Court found that:
[R]emarks of a judge made in the context of a court proceeding are not
considered indicative of improper bias or prejudice unless they show that the
judge has closed his or her mind to the presentation of all the evidence.
The Cameron Court went on further, stating the following:
So long as a judge remains open-minded enough to refrain from finally
deciding a case until all of the evidence has been presented, remarks made by
the judge during the course of the proceedings will not be considered as
indicative of disqualifying bias or prejudice,
Id. (quoting Jeffrey M. Shaman, et al., Judicial Conduct and Ethics 4,07, at 105 (2d ed.
1995)).
While not specifically addressed by Judge Ellsworth in her affidavit, the transcript of
the sentencing provides some context for this Court regarding the adjudication of the Defendant
at the start of the sentencing. For instance, after adjudicating Defendant guilty, Judge
Ellsworth turns to the Deputy Attorney General and states, "[1] understand that you're not
opposed to a stayed adjudication and probation pursuant to NRS 453,3363 treatment,"
(Sentencing Hr'g Tr. 2:12-13, Feb. 27, 2012), This Court notes that the Judge's sentencing
procedure here is the custom and practice of criminal judges in the Eighth Judicial District for
This Court notes that the only issue addressed by this Court is the
determination of whether bias, actual or implied, on the part of Judge
Ellsworth warrants her disqualification. Whether or not Judge Ellsworth's
sentence is appropriate as a matter of law is not appropriately addressed by
this Court, and this Court does not address that issue herein.
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the vast majority of cases. That is, except for the cases where adjudication is stayed, the
standard procedure is to adjudicate Defendant guilty of the offense to which he plead guilty and
then hear argument from the parties before the sentence is imposed. 3 It appears to this Court
that Judge Ellsworth's adjudication of Defendant before oral argument was as a result of habit,
or formulaic in nature, and not as a result of Judge Ellsworth closing her mind to the
presentation of evidence. The transcript of the sentencing supports this Court's conclusion.
In accordance with the custom and practice of criminal judges in the Eighth Judicial
District, Judge Ellsworth confirmed the State's position regarding sentencing as would
typically occur in a criminal sentencing by any judge. (Sentencing Reg Tr, 2:9 -13).
Specifically, Judge Ellsworth invited the State to be heard in order to ensure that she had the
correct understanding of the plea agreement. Typically, such a canvass of the State would not
have been necessary and presumably would not have occurred had Judge Ellsworth had no
intention of considering any statements from the Deputy Attorney General. Moreover, when
questioned by defense counsel why his client had been adjudicated before oral argument had
been heard and considered, Judge Ellsworth indicated agreement with defense counsel's
position stating, "[I]'11 defer that until I hear your. ." (Sentencing Hr'g Tr. 2:24-25; 3;1-2).
The sentencing transcript, when viewed in its totality, lends more support to the
conclusion that Judge Ellsworth adjudicated the Defendant guilty before argument as a matter
of routine habit and practice, not because she had closed her mind to the presentation of
As Chief Judge of the Eighth Judicial District court, past Presiding
Criminal Judge of the Eighth Judicial District Court, a member of the
Criminal Division of the Eighth Judicial District Court hearing criminal
cases as trial judge for over eight years, and a past prosecutor who
appeared before many different Eighth Judicial District Court Judges for
over five years, this Court has great familiarity not only with the custom
and practice of the Judges in the Eighth Judicial Distrint Court, but also
the different versions of the "Bench Books" used by many different judges as
a tool to ensure consistency in procedure. The procedure of adjudicating a
defendant guilty of the crime to which he plead guilty before argument
regarding the appropriate sentence is heard is the standard practice of most
judges in the majority of criminal cases. In fact, this Court, having
conducted many hundreds if not thousands of criminal felony sentencings, has
started each sentencing with essentially the exact same 'formula' as Judge
Ellsworth here. That is to inquire whether there is any legal cause or
reason why judgment could not be pronounced; if none, then proceeding to
adjudicate the defendant guilty, and then hearing argument from the partiee
before imposing a sentence.
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evidence. This conclusion is further supported by the fact she properly welcomed evidence and
argument from the parties before a final sentence determination. In light of the foregoing, this
Court does not find that the adjudication of Defendant, with a subsequent deferral of the
decision whether or not to adjudicate Defendant guilty until after argument, to be evidence of
bias, actual or implied, Additionally, Judge Ellsworth denies in her sworn affidavit that she has
any bias against Defendant,
Second, Defendant argues that the physical actions of the court's Marshal further
demonstrate the judge's alleged bias or prejudice, Defendant alleges the fact that the Marshal
in the courtroom placed handcuffs on Defendant before the Judge had completed sentencing,
establishes that Judge Ellsworth was either actually or impliedly biased. Specifically,
Defendant avers that this incident proves that Judge Ellsworth closed her mind to the
presentation of all the evidence, including oral arguments at sentencing, and that she
predetermined to incarcerate the Defendant, which is direct contradiction with the Code and
NRS 1.230,
In response to Defendant's argument, this Court notes there is no evidence Judge
Ellsworth discussed the sentencing of Defendant in advance with her Marshal, In fact, in her
Affidavit in Answer to Defendant's Motion to Disqualify the Honorable Carolyn Ellsworth,
Judge Ellsworth specifically denies discussing the impending sentence of the Defendant with
the Marshal prior to the hearing. Judge Ellsworth further swore that she had no knowledge in
advance that the Marshal would attempt to anticipate the judge's sentence and "react
proactively" to what the Marshal thought the order would be. Essentially, the Judge attributes
the conduct of the Marshal to being relatively new to his position.
Defendant's counsel requests an evidentiary hearing on the issue of whether or not the
Marshal was lajctually aware of what Judge Ellsworth (sic) sentence was going to be prior to
the time of the imposition of sentencing. . .," suggesting to this Court that if the Marshal was
advised by the Judge to anticipate the incarceration of the Defendant that such evidence would
support a finding of bias. This Court is not persuaded by Defendant's argument for two
reasons.
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First, the Nevada Revised Code of Judicial Conduct states in pertinent part, "[a] judge
may consult with court staff and court officials whose functions are to aid the judge in carrying
out the judge's adjudicative responsibilities, or with other judges, provided the judge makes
reasonable efforts to avoid receiving factual information that is not part of the record, and does
not abrogate the responsibility personally to decide the matter." Code Rule 2.9(A)(3), This
provision of the Code allows a judge to consult with members of their staff if and when
appropriate to ensure the orderly administration of justice. It is the duty of a judge to require
order and maintain decorum in the courtroom. Code Rule 2.8(A), While there is no evidence
that the Judge in the instant case advised her Marshal of a possibility or probability of
incarceration of Defendant, were she to have done so, such conduct would have been consistent
with her ability and duty under the Code to maintain decorum and a controlled courtroom.
Defendant's argument presupposes that were a Judge to advise a Marshal of the possible or
probable incarceration of a particular Defendant that the Judge has per se closed his mind to the
presentation of all evidence, when in fact, it is a judge's duty to balance their duties and
responsibilities under the Code while affording the parties due process and keeping an open
mind to the presentation of all evidence,
Second, the record of the proceedings here does not support Defendant's argument. For
example, Judge Ellsworth did not remand Defendant into custody on that day, but rather
approved defense's request that the date of surrender be postponed for two weeks. In fact,
defense's request was made immediately after the court first offered a later surrender date. If
the facts were as Defendant suggests, that Judge Ellsworth had predetermined to incarcerate
Defendant prior to any oral argument, the fact she changed her mind as to Defendant's
surrender date evidences that her final sentencing decision had indeed not been made.
In this case, Judge Ellsworth denies a presentence discussion with the Marshal, but even
if one had occurred it would not have been improper, and the record of the Judge's actions here
do not demonstrate that she closed her mind to all the evidence, nor that she failed to keep an
open mind enough to refrain from finally deciding the case before all the evidence was
presented. As a result, Defendant failed to meet his burden in overcoming the presumption that
to 00 U008
Judge Ellsworth is not actually or impliedly biased or prejudiced.' Therefore, this Court
ORDERS the Motion to Disqualify Judge DENIED.
Dated this 30 day of March, 2012
Ybarra v. State of Nevada, 127 Nev. Adv. Op. 4, 247 1 3 .3d 269, 272 (2011)
("Because a judge is presuMed to be impartial, the burden is on the party
asserting the challenge to establish sufficient factual grounds warranting
disqualification,")
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CERTIFICATE OF FACSIMILE T RANSMISSION

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The undersigned certifies that day filed, this ORDER DENYING DEFENDANT'S
MOTION TO DISQUALIFY JUDGE CAROLYN ELLS WORTH (C-11-275700-1) was sent
by facsimile transmission, and/or placed in the attorney bin located on the first floor of the RIC
and/or electronic service to the following:
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The Honorable Carolyn Ellsworth

REGIONAL JUSTICE CENTER
200 Lewis Avenue
Las Vegas, NV 89155
Telephone: (702) 671-4360
Facsimile: (702) 671-4359
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Thom Gover, Esq.

CHIEF DEPUTY ATTORNEY GENERAL
Telephone (702) 486-3120
Facsimile: (702) 486-2377
WILLIAM B TERRY CHARTERED
Telephone: (702) 385-0799
Facsimile: (702) 385-9788
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Rose Naj era

Judicial Executive Assistant
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Filed: ' Ourt K. I..%N - F

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ORIGINAL

IN THE SUPREME COURT OF THE STATE OF NEVADA

WILLIAM B. TERRY, ESQ.

IN THE SUPREME COURT OF THE STATE OF NEVADA

APPLICATION FOR WRIT OF MANDAMUS OR, IN THE ALTERNATIVE,

Not on our behalf, Your Honor. Good

Your Honor, before I address the Court, I

you adjudicated my client guilty of a felony.

Remarks of a judge made in the context of a court proceeding are not

at the start of the sentencing..."

presentation of evidence." It is respectfully submitted that Judge Togliatti's decision is not

Statement of the Issues

Whether a Writ of Prohibition, or in the alternative, a Writ of Mandamus is the proper

of any matter in the instant case;

Statement of Reasons Why the Writ of Prohibition, or in the

A WRIT OF MANDAMUS WHILE AN EXTRAORDINARY REMEDY HAS BEEN

We have previously noted that a Petition for a Writ of Mandamus is

It is therefore respectfully suggested that while discretionary in nature, mandamus and

THE PETITIONER HEREIN HAS DEMONSTRATED ACTUAL BIAS AND PREJUDICE

WILLIAM B. TERRY, RSQ

NOTARY PUBLIC in and for said

The undersigned hereby certifies that on the

day of April, 2012, I placed a true and

correct copy of the APPLICATION FOR WRIT OF MANDAMUS OR, IN THE

prepaid thereon, addressed as follows:

WILLIAM B. TERRY, ESQ.

EIGHTH JUDICIAL DISTRICT COURT

PETITION AND MOTION TO DISQUALIFY JUDGE

STATUTORY PROCEDURES FOR DISQUALIFYING JUDGES OTHER THAN

Under NRS 1.235 the following provisions are set forth:

Any party to an action or proceeding pending in any court other than

AFFIDAVIT SPECIFYING THE FACTS UPON WHICH THE DISQUALIFICATION

been so licensed since 1973.

Authorities in Support of Sentencing" with attachments. A copy of that document is attached

period of probation with conditions.

had imposed the nine month incarceration.

determination of an appropriate sentence. In her sentencing, she referred to Mr. Schubert as

SUBSCRIBED and SWOpi-W_tefore

THE INSTANT MOTION IS TIMELY

the court specifically held was the following:

In addition, remarks of a judge made in the context of a court

the sentence must be done anew by an unbiased and unprejudiced judge.

DATED this 5th day of March, 2012.

CLARK COUNTY, NEVADA

THE STATE OF NEVADA,

Case No.: C-11-275700-1

GUILTY PLEA AGREEMENT

THE STATE OF NEVADA, by CATHERINE CORTEZ MASTO, Attorney General, through

I, DAVID SCHUBERT, agree to plead guilty to UNLAWFUL POSSESSION OF A

CONTROLLED SUBSTANCE NOT FOR THE PURPOSE OF SALE - (FIRST OFFENSE), a

Information attached as Exhibit 1.

My decision to plead guilty is based upon the following plea agreement:

using a controlled substance.

I understand that if the State of Nevada has agreed to recommend or stipulate to ;

19 . 1 for any lawful sentence.

CONSEQUENCES OF THE PLEA

I, DAVID SCHUBERT, understand that as a consequence of my plea of guilty I may bi

administrative assessment fee.

receive probation is in the discretion of the sentencing judge.

sentences served concurrently or consecutively.

my sentence is to be determined by the court within the limits prescribed by statute.

to gain United States citizenship or legal residency; and/or an indeterminate term

confinement, with the United States Federal Government based on my conviction al