131 Nev., Advance Opinion 14'
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
JIMMY D. PITMON, No. 65000
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent. MAR 2 6 2015
1E K. LINDEMAN
CLEM IF WFREM4 ania
BY
CH
Appeal from a judgment of conviction of attempted\lewdness
with a child under the age of 14. Eighth Judicial District Court, Clark
County; Douglas W. Herndon, Judge.
Affirmed.
Turco & Draskovich, LLP, and Robert M. Draskovich, Las Vegas; Law
Office of Gary A. Modafferi and Gary A. Modafferi, Las Vegas,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, and Steven S. Owens, Chief Deputy District Attorney,
Clark County,
for Respondent.
BEFORE GIBBONS, C.J., TAO and SILVER, JJ.
OPINION
By the Court, TAO, J.:
When a criminal defendant stands convicted of two or more
felony criminal offenses and has already been sentenced to a term of
imprisonment for one of those offenses, NRS 176.035(1) expressly permits
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a district court to order that the sentence for the second offense be
imposed either concurrently or consecutively to the first sentence. In this
appeal, appellant Jimmy D. Pitmon asserts that NRS 176.035(1) violates
the Due Process Clause of the United States and Nevada Constitutions'
because it fails to articulate any "pre-existing and reviewable criteria" to
guide the district court in deciding whether the second sentence should be
imposed concurrently or consecutively. We conclude that NRS 176.035(1)
is not constitutionally deficient and therefore affirm.
FACTS
Pitmon was originally charged in three separate cases with
multiple counts of attempted lewdness with a child under the age of 14
arising from allegations that he fondled the genitals of three different 4-
year-old children on multiple occasions. The charges in two of those cases
were eventually consolidated together into a single case (the first case),
leaving two cases pending. Following negotiations with the district
attorney, Pitmon agreed to enter a plea of guilty in each case to one count
of attempted lewdness with a child under the age of 14, and all other
pending charges and counts were to be dismissed after rendition of
sentence.
The written guilty plea agreements signed by Pitmon in both
cases were virtually identical, and both specified that the State retained
the right to argue at sentencing. The guilty plea agreements also
'The Fourteenth Amendment to the U.S. Constitution and Article 1,
Section 8, paragraph 5 of the Nevada Constitution both provide that no
person shall be deprived of "life, liberty, or property, without due process
of law."
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acknowledged that the sentencing judge possessed the discretion to order
that the sentences be served either concurrently or consecutively.
Prior to sentencing, Pitmon underwent a psychosexual
evaluation by psychologist Dr. John Paglini and was classified as a "high"
risk to reoffend, which rendered him statutorily ineligible to receive
probation. See NRS 176A.110. During his interview with Dr. Paglini,
Pitmon admitted to inappropriate sexual contact with a fourth child years
before the instant offenses. Thus, the presentence investigation report
prepared by the Nevada Division of Parole and Probation noted that
Pitmon had victimized at least four minor children over the course of a
decade.
Pitman was sentenced in the first case and received the
maximum possible sentence, which was a minimum term of 8 years and a
maximum term of 20 years' imprisonment. See NRS 193.330(1)(a)(1); NRS
201.230(2). Two days later, he appeared for sentencing in the instant case
and again received the maximum possible sentence. Additionally, the
district judge in the instant case ordered that the sentence be served
consecutively to the sentence previously imposed in the first case.
Pitmon failed to file a direct appeal from his conviction, but
the district court subsequently found that Pitmon had been improperly
deprived of a direct appeal and permitted Pitmon to file the instant appeal
pursuant to NRAP 4(c)(1).
DISCUSSION
In general, district judges in Nevada possess wide discretion
in imposing sentences in criminal cases. See Houk v. State, 103 Nev. 659,
664,
747 P.2d 1376, 1379 (1987) ("The sentencing judge has wide
discretion in imposing a sentence. . . ."). On appeal, a sentence imposed in
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district court will not be overruled absent a showing of "abuse of
discretion." Id. Thus, appellate courts will refrain from interfering with
sentences imposed in district court "[sic) long as the record does not
demonstrate prejudice resulting from consideration of information or
accusations founded on facts supported only by impalpable or highly
suspect evidence." Silks v. State, 92 Nev. 91, 94,
545 P.2d 1159, 1161
(1976). Furthermore, regardless of its severity, a sentence that is within
the statutory limits is not considered to violate the Eighth Amendment's
proscription against 'cruel and unusual punishment unless the statute
fixing punishment is unconstitutional or the sentence is so unreasonably
disproportionate to the offense as to shock the conscience." Blume v.
State, 112 Nev. 472, 475,
915 P.2d 282, 284 (1996) (quoting CuIverson v.
State, 95 Nev. 433, 435,
596 P.2d 220, 222 (1979)); see Harmelin v.
Michigan, 501 U.S. 957, 1000-01 (1991) (plurality opinion) (explaining
that the Eighth Amendment does not require strict proportionality
between crime and sentence, but forbids only an extreme sentence that is
grossly disproportionate to the crime).
In this appeal, Pitmon does not contend that his sentence was
"cruel and unusual," or that the district court relied upon "impalpable or
highly suspect evidence" in imposing his sentence. Pitmon also does not
allege that his sentence constituted an "abuse of discretion" under the
particular circumstances of this case. Rather, Pitmon argues that NRS
176.035(1) is facially unconstitutional because it affords virtually
unfettered discretion to the district court to determine whether sentences
for separate offenses should be imposed concurrently or consecutively.
Thus, Pitmon argues that NRS 176.035(1) fails to comply with the Due
Process Clause because an ordinary citizen facing sentencing for different
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offenses cannot reasonably understand or anticipate whether the
sentences are likely to be imposed concurrently or consecutively. Pitmon
further contends that the statute lacks meaningful or specific standards
guiding when consecutive sentences may be imposed and permits
arbitrary imposition of those sentences by a district court. More broadly,
Pitmon also argues that Nevada's sentencing scheme is invalid because it
lacks meaningful appellate review of any sentence imposed by a district
court, no matter how arbitrary that sentence may have been.
The constitutionality of a statute is a question of law that this
court reviews de novo. See Flamingo Paradise Gaming, LLC v. Chanos,
125 Nev. 502, 509, 217 P.3d. 546, 551 (2009). Statutes are presumed
valid, and the burden therefore falls upon Pitmon to make a "clear
showing of invalidity." Silvar v. Eighth Judicial Dist. Court, 122 Nev.
289, 292,
129 P.3d 682, 684 (2006). A statute may be challenged as
unconstitutional either because it is vague on its face, or because it is
vague as applied only to the particular challenger. Flamingo Paradise,
125 Nev. at 509-10,
217 P.3d at 551-52. Here, Pitmon asserts that NRS
176.035(1) is unconstitutional on its face because it is inherently vague
with respect to any sentence that could be imposed upon any criminal
defendant who stands convicted of multiple offenses.
When analyzing whether a statute is unconstitutionally vague
in violation of the Due Process Clause, courts generally apply a two-factor
test. Silvar, 122 Nev. at 293,
129 P.3d at 685; see also Kolender v.
Lawson, 461 U.S. 352, 357 (1983). Under this two-factor test, a statute is
unconstitutionally vague if it "(1) fails to provide notice sufficient to enable
persons of ordinary intelligence to understand what conduct is prohibited
and (2) lacks specific standards, thereby encouraging, authorizing, or even
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failing to prevent arbitrary and discriminatory enforcement." Silvar, 122
Nev. at 293,
129 P.3d at 685.
To be considered unconstitutional on its face, a statute must
be vague "in all of its applications." Flamingo Paradise, 125 Nev. at 511-
12, 217 P.3d at 552-53. When a challenge is made to a statute that
implicates criminal penalties or constitutionally protected rights, the
statute is unconstitutional if the vagueness "so permeates the text that the
statute cannot meet these requirements in most applications; and thus,
this standard provides for the possibility that some applications of the law
would not be void, but the statute would still be invalid if void in most
circumstances." Id.
Pitmon's challenge to NRS 176.035(1) runs as follows. He
contends that sentences for different offenses should normally be imposed
concurrently because the statute specifies, in its second sentence, that "if
the court makes no order with reference thereto, all such subsequent
sentences run concurrently." NRS 176.035(1). Pitmon interprets this
sentence as an intentional restriction by the Nevada Legislature upon the
discretion of district courts to impose consecutive sentences by requiring
that such sentences usually be imposed concurrently "by default."
Therefore, Pitmon argues that, because a person of ordinary intelligence
would understand that all subsequent sentences must normally run
concurrently by default, a district court cannot constitutionally deviate
from this expectation in the absence of clearly established criteria.
Because those clear criteria are missing from the statute, he avers that
the statute is unconstitutional unless all subsequent sentences are
imposed concurrently.
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The fundamental problem with Pitmon's argument is that it
misreads NRS 176.035(1). In analyzing the meaning of a statute, the
court must interpret it in a reasonable manner, that is, Itthe words of the
statute should be construed in light of the policy and spirit of the law, and
the interpretation made should avoid absurd results." Desert Valley Water
Co. v. State, 104 Nev. 718, 720,
766 P.2d 886, 886-87 (1988). A statute
"should be given [its] plain meaning and must be construed as a whole and
not be read in a way that would render words or phrases superfluous or
make a provision nugatory." Mangarella v. State, 117 Nev. 130, 133,
17
P.3d 989, 991 (2001) (internal quotations omitted).
Pitmon focuses upon a single sentence of NRS 176.035(1) in
isolation and ignores the very first sentence of NRS 176.035(1), which
expressly states that a district court "may" impose consecutive subsequent
sentences. When the first and second sentences of the statute are read
together, as they must be, it is clear that NRS 176.035(1) was not intended
to restrict the ability of sentencing courts to impose consecutive sentences
for separate offenses, but rather was intended to give district courts
discretion in determining whether such sentences should be imposed
consecutively or concurrently.
When the language of a statute is plain and unambiguous, the
court is not permitted to look for meaning beyond the statute and the
court will only go to legislative history when the statute is ambiguous.
Estate of Smith v. Mahoney's Silver Nugget, Inc., 127 Nev. „ 265
P.3d 688, 690 (2011). We conclude that the plain language of NRS 176.035
is unambiguous. However, even if we were to find that the plain language
of the statute was ambiguous, the legislative history clearly demonstrates
that NRS 176.035 was intended to give district courts discretion in
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determining whether such sentences should be imposed consecutively or
concurrently.
NRS 176.035 was originally enacted in 1967. Prior to 1987,
the statute required that any subsequent offense committed while a
defendant was on probation for an earlier offense was required to be
imposed consecutively. In 1985, the Governor and the Legislature
established a "Commission to Establish Suggested Sentences for Felonies,"
which studied Nevada's sentencing statutes and issued a report in
December 1986 recommending extensive revisions to Nevada's criminal
statutes. Some of these recommendations were reflected in Assembly Bill
(A.B.) 110, introduced during the 1987 legislative session. Witnesses
testified to the Legislature that, among other suggested changes, judges
should be given discretion to determine whether sentences for subsequent
offenses should be imposed concurrently or consecutively, and that the
statute should not impose a "default" requirement either way. (See
Hearing on A.B. 110 Before the Assembly Judiciary Comm., 64th Leg.
(Nev., May 26, 1987)). The Legislature enacted A.B. 110, which revised
NRS 176.035(1) to specify that judges have discretion to determine
whether sentences for subsequent crimes should be imposed concurrently
or consecutively.
More recently, NRS 176.035(1) was further revised by the
Legislature in 2013 through Senate Bill (S.B.) 71 (in a manner that
became effective in July 2014 and therefore does not apply to Pitmon's
conviction). The introduction to S.B. 71 describes the version of NRS
176.035 that applies to Pitmon's conviction as follows:
Under [pre-2014] law, a person who is convicted of
committing more than one crime may be
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sentenced to serve the sentences imposed for each
crime concurrently or consecutively.
S.B. 71, 77th Leg. (Nev. 2013).
Thus, the legislative history of MRS 176.035 makes clear that
the Nevada Legislature did not intend MRS 176.035(1) either to limit the
discretion of district judges to impose sentences concurrently or
consecutively, or to require that such sentences be imposed concurrently
"by default." Quite to the contrary, the 1987 amendments to MRS
176.035(1) were expressly designed to give judges greater discretion over
such decisions than they had before 1987 when such sentences were
required to be imposed consecutively. Accordingly, it cannot be said that
MRS 176.035(1) was intended to require that a person facing sentencing
for two different offenses should be awarded concurrent sentences rather
than consecutive ones.
If anything, it strikes the court that an ordinary person who
chooses to commit two offenses and is convicted of both should reasonably
anticipate the possibility, and perhaps even the likelihood, that he or she
will have to serve consecutive sentences for each crime. To conclude
otherwise would be to effectively reward defendants who commit multiple
offenses and require that they be sentenced as if they had only committed
one. Nothing in the Due Process Clause demands that defendants who
commit multiple crimes must receive the same sentence as defendants
who commit only one. See United States v. Mun, 41 F.3d 409, 413 (9th Cir.
1994) (defendant does not have a due process right to concurrent
sentences); see also Isreal v. Marshall, 125 F.3d 837, 839 (9th Cir. 1997)
("NJ o right to concurrency inheres in the Due Process Clause. . . .").
Furthermore, the Due Process Clause does not require that
every sentencing statute include specifically enumerated and rigorously
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defined checklists that must be mechanically applied by rote in every case.
See Branch v. Cupp, 736 F.2d 533, 536 (9th Cir. 1984) (stating that
defendant's due process rights were not violated merely because judge
failed to articulate specific reasons for imposing sentence). Rather, the
nature of criminal sentencing in Nevada is such that judges must be able
to exercise discretion in order to match the sentence imposed in each case
to the nature of a particular crime, the background of a particular
defendant, the potential effect of the crime on any victim, and any other
relevant factor. As former Justice Rose observed, "[1] egislatures cannot
create enough sentencing law to match the nuances of each crime and
perpetrator, and thus they confer on their respective judiciaries some
discretion in sentencing." Sims v. State, 107 Nev. 438, 443,
814 P.2d 63,
66 (1991) (Rose, J., dissenting). The mere existence of such discretion does
not, by itself, render a statute unconstitutionally vague. The Due Process
Clause does not require mathematical precision, but only that statutes be
comprehensible to persons of ordinary intelligence.
Pitmon contends that many of our sister states have enacted
legislation that removes such unbounded discretion from sentencing
judges and instead requires that specific findings be made before
consecutive sentences may be imposed. 2 But the fact that many states
2 SeeAlaska (Alaska Stat. § 12.55.127 (2014)); Arizona (
Ariz. Rev.
Stat. Ann. § 13-708 (Supp. 2014)); Arkansas (
Ark. Code Ann. § 5-4-403
(2013)); Florida (Fla. Stat. Ann. § 921.16 (West Supp. 2015)); Idaho (
Idaho
Code Ann. § 18-308 (2004)); Illinois (730 Ill. Comp. Stat. Ann. 5/5-8-4
(West Supp. 2014)); Kansas (Kan. Stat. Ann. § 21-4608 (2007)); Kentucky
(Ky. Rev. Stat. Ann. § 532.110 (LexisNexis 2008)); Maryland (Md. Rules §
4-351 (LexisNexis 2015); Md. Code Ann., Corr. Servs. § 9-201 (LexisNexis
2008)); Mississippi (Miss. Code Ann. § 99-19-21 (2007)); Missouri (Mo.
Ann Stat. § 558.026 (West 2012)); Montana (Mont. Code Ann. § 46-18-401
continued on next page...
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have chosen to remove such discretion from sentencing judges does not
mean that such discretion is constitutionally prohibited or that similar
standards are constitutionally mandated in every state.
Further, the failure to require the district court to make
specific findings before imposing consecutive sentences does not render the
sentence unreviewable on appeal. A sentence may be reversed on appeal
either if the record demonstrates "prejudice resulting from consideration
of information or accusations founded on facts supported only by
impalpable or highly suspect evidence," Silks v. State, 92 Nev. 91, 94,
545
P.2d 1159, 1161 (1976), or if the sentence was "so unreasonably
disproportionate to the offense as to shock the conscience," Blume v. State,
112 Nev. 472, 475,
915 P.2d 282, 284 (1996) (internal quotations omitted).
See Harmelin v. Michigan, 501 U.S. 957, 1000-01 (1991) (plurality opinion)
(explaining that the Eighth Amendment does not require strict
proportionality between crime and sentence, but forbids only an extreme
sentence that is grossly disproportionate to the crime). Pitmon fails to
explain why the Due Process Clause must be read to mandate that
appellate courts in Nevada be given more authority than they currently
possess to review criminal sentences, or why the existing standards are
constitutionally insufficient to protect the rights of a defendant sentenced
in Nevada. Pitmon's concerns are more properly left to the Legislature.
...continued
(2011)); New Jersey (N.J. Stat. Ann. § 2C:44-5 (2005)); Texas (Tex. Crim.
Proc. Code Ann. § 42.08 (West Supp. 2014)); Utah (
Utah Code Ann. § 76-3-
401 (LexisNexis 2012)); and Wisconsin (Wis. Stat. Ann. § 973.15 (West
2007)).
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On balance, we cannot conclude that the text of NRS
176.035(1) is so "permeated" by vagueness that the imposition of
consecutive sentences would be unfair "in most circumstances" whenever a
defendant is sentenced for committing two separate crimes. Quite to the
contrary, it seems to the court that the imposition of consecutive sentences
for the commission of two separate crimes would represent an outcome
reasonably to be expected by persons of ordinary intelligence. See Fierro v.
MacDougall, 648 F.2d 1259, 1260 (9th Cir. 1981) (concluding that, even
where legislature did not authorize the imposition of consecutive
sentences, due process clause permitted judge to impose consecutive
sentences because "[t]he imposition of consecutive sentences is nothing
more than the imposition, for each crime, of the sentence fixed by
legislative act. Such sentencing [constitutes] literal compliance with that
which the legislature has prescribed.").
To the extent that Pitmon asserts that his sentences were
unconstitutional "as applied" to him, we conclude that the sentences
imposed did not violate constitutional standards and the district court did
not abuse its discretion by ordering that those sentences be served
consecutively. Pitmon entered pleas of guilty to only two felony counts
even though he was originally charged with committing similar offenses
against three different children over a period of several months and
admitted to committing additional offenses against a fourth child on prior
occasions. Further, his psychosexual evaluation classified him as a "high"
risk to reoffend. We conclude that the sentences imposed were not
unreasonably disproportionate to the offenses to which Pitmon pleaded
guilty, even though he received consecutive maximum sentences.
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CONCLUSION
For the reasons discussed above, we conclude that NRS
176.035(1) is not unconstitutionally vague in violation of the Due Process
Clause of the U.S. and Nevada Constitutions. Accordingly, we affirm the
sentence imposed by the district court.
Tao
We concur:
/1".
, C.J.
Gibbons
J.
Silver
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