ANUSHEVITZ v. WARDEN, NEVADA STATE PRISON

OPINION

MOWBRAY, Justice.

These two cases have been consolidated for the purposes of appeal, because the same issue is involved in each case.

The appellant-petitioners, Walter Paul Anushevitz and Tracy Bosley, commenced habeas proceedings in the district court under Nevada's Post-Conviction Relief Statute, NRS 177.315.1 Both petitioners had been charged with felonies.2 Each defendant pleaded guilty as charged. They were both represented by counsel at all stages of the proceedings.3 Appellants concede that the record shows that their pleas were intelligently and voluntarily made.4 The petitioner-defendants were later sentenced. Anushevitz had six prior felony convictions and Bosley, six. After the petitioners were sentenced, they learned that, as a result of an opinion of the Attorney General (No. 489, February 8, 1968) construing NRS 213.110, they were ineligible for parole.5

Petitioners now assert that the district judges who received their pleas had the duty to advise them of NRS 213.110 and of their ineligibility for parole.

Petitioners argue in their opening briefs that the case of Munich v. United States, 337 F.2d 356 (9th Cir.1964), is controlling in their cases. In Munich, the court said at 361:

"* * * In our opinion one who, at the time of entering a plea of guilty, is not aware of the fact that he will not be eligible for probation or parole, does not plead with understanding of the consequences of such a plea." (Footnote omitted.)

In other circuits, however, the courts have not so held. In Jenkins v. United States, 289 F.Supp. 415 (N.D.Okl. 1968), the court in commenting on the Munich decision, stated at 417-418:

We decline to follow Munich in the instant cases, for in any event, in the context of these appeals we are satisfied that even the Ninth Circuit Court would be obliged to find the omission complained of harmless error.

In their supplemental brief, petitioners rely heavily on the United States Supreme Court decision in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, rendered June 2, 1969. Boykin, who had counsel, entered a guilty plea to five indictments for the common-law crime of robbery. The judge who received Boykin's plea asked no questions concerning the plea, and Boykin did not address the court.

Quite the contrary in the instant case. See footnote 4, supra. The district judge, by his colloquy with Anushevitz, demonstrated in the record that the plea was "voluntarily and knowingly made," as mandated by NRS 174.035(1).6 We find nothing in Boykin that suggests any duty upon the court to advise a defendant regarding the prospects for parole, the granting of which is wholly beyond the jurisdiction of the district judge. Not so, of course, in the case of probation, and the district judge covered that contingency in his colloquy.

The rights about which the High Court speaks in Boykin are constitutional trial rights. As Mr. Justice Douglas, in writing for the majority, said at 243, 89 S.Ct. at 1712:

On the other hand, parole is a matter of legislative grace. As the court said in Smith v. United States, 116 U.S.App. D.C. 404, 324 F.2d 436, 441 (1963): "[E]ligibility for parole is not a `consequence' of a plea of guilty, but a matter of legislative grace. It is equally true that non-eligibility for parole is not a `consequence' of a plea of guilty * * * rather, it is a consequence of the withholding of legislative grace." Our own court has so held. Eisentrager v. State Bd. of Parole Com'rs, 85 Nev. 672, 462 P.2d 40 (1969); Pinana v. State, 76 Nev. 274, 352 P.2d 824 (1960).

We find no merit in the appellants' applications for habeas, and we therefore affirm the rulings of the lower court in denying the writs.

COLLINS, C.J., and ZENOFF, BATJER, and THOMPSON, JJ., concur.