him withdraw?" The district court told Ponce it would contact his counsel 

and tell him that Ponce had an urgent matter to speak with him about. 

One month later, counsel informed the district court that Ponce had filed a 

proper person motion to withdraw his guilty plea but that counsel had not 

seen the motion. The district court did not find any record of Ponce's 

motion and told counsel that it would be considered a "fugitive document," 

presumably because Eighth Judicial District Court Rule 3.70 prohibits the 

district court from filing proper person motions delivered by a defendant 

who is represented by counsel. The district court then pronounced Ponce 

guilty based upon his previously entered guilty plea. 

During allocution Ponce told the court that he asked his 

counsel to withdraw his plea on his behalf and gave several reasons why 

he was concerned with the circumstances surrounding his plea agreement, 

particularly his agreement to plead guilty to a fictitious robbery count. 

Ponce then asked the court to "either run [his robbery conviction] 

concurrent, or dismiss the robbery, or allow him to withdraw." While this 

last statement could be construed as an oral request to withdraw his 

guilty plea, Ponce's request was equivocal. Based on the limited record 

before this court, Ponce appears to have wanted to renegotiate his guilty 

plea rather than completely withdraw it and proceed to trial. Because of 

the equivocal nature of Ponce's statement, we cannot say that the district 

court abused its discretion by failing to construe his statements as an oral 

motion to withdraw his guilty plea and rule on whether he had a "fair and 

just" reason to withdraw his guilty plea. The district court also did not 

deny Ponce the right to file a motion to withdraw his guilty plea. Any 

claim that Ponce's counsel was ineffective for failing to agree to his 

repeated requests to file a presentence motion to withdraw his guilty plea 

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on his behalf must be brought in a post-conviction petition for a writ of 

habeas corpus. See id. at 882, 34 P.3d at 534; see also NRS 34.726(1) 

("Unless there is good cause shown for delay, a petition . . . must be filed 

. . . within 1 year after the Supreme Court issues its remittitur" on direct 

appeal.). 

Third, Ponce contends that the district court abused its 

discretion at sentencing by not following the recommendation of the 

Division of Parole and Probation and considering other mitigating factors 

and that its sentencing decision amounts to cruel and unusual 

punishment under the United States Constitution. U.S. Const. amend. 

VIII. This• court will not disturb a district court's sentencing 

determination absent an abuse of discretion. Rondell v. State, 109 Nev. 5, 

8, 846 P.2d 278, 280 (1993). Ponce has not alleged that the district court 

relied solely on impalpable or highly suspect evidence or that the 

sentencing statute is unconstitutional. See Chavez v. State, 125 Nev. 328, 

348, 213 P.3d 476, 489-90 (2009). "Furthermore there is no requirement 

imposed upon the sentencing court to set the penalty in compliance with 

the recommendations of the [Division] of Parole and Probation." Collins v. 

State, 88 Nev. 168, 171, 494 P.2d 956, 957 (1972). Ponce's consecutive 

sentences of life with a minimum parole eligibility after 10 years and 180 

months with a minimum parole eligibility after 60 months falls within the 

parameters provided by the relevant statutes, see NRS 200.030(5); NRS 

200.380(2), and we conclude that his sentence is not so unreasonably 

disproportionate to the gravity of the offenses as to shock the conscience, 

see Harmelin v. Michigan, 501 U.S. 957, 1000-01 (1991) (plurality 

opinion); CuIverson v. State, 95 Nev. 433, 435, 596 P.2d 220, 221-22 (1979). 

Therefore, we conclude that the district court did not abuse its discretion 

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at sentencing and Ponce's sentence did not amount to cruel and unusual 

punishment. 

Having considered Ponce's contentions and concluded that he 

is not entitled to relief', we 

ORDER the judgment of conviction AFFIRMED. 

( 

Hardesty 

J. 

Douglas 

cc: Hon. Michael Villani, District Judge 

Mario D. Valencia 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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