132 Nev., Advance Opinion 31
IN THE SUPREME COURT OF THE STATE OF NEVADA
LINDSIE NEWMAN, No. 67756
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
LINDSIE NEWMAN, No. 67763
Appellant,
vs. FILED
THE STATE OF NEVADA,
Respondent. APR 2 8 2016
CL
Tot ILK. .LINDEMAN
OU
BY
DEPLITMLERK
Consolidated appeals from a district court judgment reVOking
probation and from a judgment of conviction pursuant to a guilty plea to
possession of a controlled substance. First Judicial District Court, Carson
City; James Todd Russell, Judge.
Dismissed (Docket No. 67756) and affirmed (Docket No.
67763).
Karin K. Kreizenbeck, State Public Defender, and Sally S. deSoto, Chief
Appellate Deputy Defender, Carson City,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Jason Woodbury,
District Attorney, and Iris F. Yowell, Deputy District Attorney, Carson
City,
for Respondent.
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BEFORE DOUGLAS, CHERRY and GIBBONS, JJ.
OPINION
By the Court, CHERRY, J.:
These are consolidated appeals from a district court judgment
revoking probation following a guilty plea to conspiracy to commit grand
larceny and a judgment of conviction pursuant to a guilty plea to
possession of a controlled substance. We focus upon whether the district
court plainly erred when it considered the status of appellant, Lindsie
Newman, as a pregnant drug addict when it sentenced her to a term of
imprisonment for possession of a controlled substance. Newman claims
the district court erroneously based its sentence on her status as a
pregnant drug addict instead of on the crime she committed. Ordinarily,
the district court should not consider a defendant's status when
determining a sentence, but we conclude that the district court did not
plainly err by considering Newman's status because she raised the issue of
her status as a pregnant addict at the sentencing hearing. 1
FACTS AND PROCEDURAL HISTORY
Newman was convicted of conspiracy to commit grand larceny,
a gross misdemeanor, after she entered a guilty plea. The district court
sentenced her to nine months in jail, suspended the sentence, and placed
'Although Newman appealed from the judgment of revocation for
her conspiracy to commit grand larceny conviction, she has not presented
any cogent arguments pertaining to that order for our consideration.
Additionally, she has been discharged from the nine-month sentence, so
the probation revocation appeal is moot. We accordingly dismiss the
district court's order from which Newman appeals in Docket No. 67756.
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Newman on probation for no more than two years with specific conditions.
Less than five months later, Newman was charged with and pleaded
guilty to possession of a controlled substance, a category E felony. Instead
of imposing a sentence in that case, the court suspended the proceedings
pursuant to NRS 453.3363 and placed Newman on probation for no more
than three years with special conditions, including completion of the
Western Regional Drug Court Program.
Newman had difficulty complying with the conditions of her
probation. At one point, the drug court terminated her for noncompliance
but then reinstated her and required her to complete a program at the
City of Refuge 2 because she was pregnant. Newman, however, left the
City of Refuge program before her baby was born. She was arrested for
probation violations, and the Division of Parole and Probation submitted
violation reports to the district court in both criminal cases. The reports
alleged that Newman violated the special conditions of her probation by,
among other things, possessing prescription pills for which she did not
have a prescription, taking morphine pills, testing positive for
methamphetamines, being discharged from drug court, and being difficult
to supervise. Parole and Probation recommended the district court revoke
2The City of Refuge is a program designed to assist pregnant women
who have unplanned pregnancies and wish to deliver, instead of abort, the
baby but cannot do so without additional support. See Welcome to City of
Refuge, City of Refuge, http://refugenevada.com/index2.html (last visited
Apr. 5, 2016). The program gives these women a safe and nurturing
environment during the gestational period. Id. The participants must
pursue a high school diploma and/or perform undemanding work. See
Mission & Ministry, City of Refuge, http://refugeneyada.com/
Mission&MInistry.html (last visited Apr. 5, 2016).
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Newman's probation and sentence her to a term of 12 to 32 months in the
controlled substance case.
The district court conducted a hearing on the violation reports.
At the hearing, Newman admitted to the violations but denied using
methamphetamines. Newman's counsel then informed the court how
Newman wished to proceed: "Ms. Newman. . . ask's] for revocation in
both of these cases today. She's appreciated the opportunities that the
Court has afforded her by allowing her diversion and the drug court
program as well as the City of Refuge so her baby will be born safe ay]."
Counsel also requested that the district court run her sentences
concurrently.
In deciding whether to impose the sentences concurrently or
consecutively, the district court explained its "main concern" was that
Newman "stays in custody long enough for that child to be born." Those
concerns were the focus of the following colloquy between the court and
defense counsel:
THE COURT: Ms. Merideth, do you
understand my concern? I just want to make sure
above all that she—and I'll sentence her
accordingly—make sure she stays in custody until
that child is born. Obviously, you couldn't trust
her at the City of Refuge. You can't trust her
anywhere. I don't want that child to be put at any
risk in respect to this matter. . . .
MS. MERIDETH: Well, I understand that,
Your Honor, and I appreciate the Court's concern.
I don't see that anyone wouldn't share the same
concerns.
Well, I would rather see her—and I think
she would agree—do her time, the remaining time
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in the actual prison system. There's more
resources available to her. There's doctors. She's
having problems getting [in to] seeing doctors in
the jail
After determining that the amount of credit applied to the 9-month
sentence (265 days) would cause that sentence to expire before Newman
gave birth, the court determined that it would have to impose a
consecutive sentence in the controlled substance case to address its
concerns. Ultimately, the district court revoked Newman's probation in
the conspiracy to commit grand larceny case and executed the original
sentence of nine months with credit for time served. The district court
then sentenced Newman to 12 to 32 months in the Nevada Department of
Corrections in the possession of a controlled substance case. The court
ordered the sentences to run consecutively. At the conclusion of the
hearing, the court informed Newman, "I'm doing this more than anything
to protect that unborn child. I don't want to see you out doing anything
until that child is born." Newman did not object below to either the
sentence the court ordered or to the court's consideration of her status as a
pregnant drug addict.
DISCUSSION
Whether this case is moot and, if so, whether this court should nonetheless
entertain the appeal
The primary issue before this court is whether the district
court plainly erred when it considered Newman's status as a pregnant
drug addict in deciding to impose a consecutive sentence in the controlled
substance case. Newman argues that this issue became moot once her
child was born but that this court should address the issue because of its
significance.
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Generally, we will not decide moot cases. Nat'l Collegiate
Athletic Ass'n v. Univ. of Nev., Reno, 97 Nev. 56, 58,
624 P.2d 10, 11
(1981). A case is moot if it "seeks to determine an abstract question which
does not rest upon existing facts or rights." Id. Mootness is a question of
justiciability. Personhood Nev. v. Bristol, 126 Nev. 599, 602,
245 P.3d 572,
574 (2010). The dispute must continue through all of the controversy's
phases. Id. A case may become moot due to later occurrences despite the
existence of a "live controversy" at the beginning of the litigation. Id.
The issue that Newman raises is not moot. Newman's
sentence has likely expired in her case for conspiracy to commit grand
larceny, and we presume that she is no longer pregnant. However, in her
case for possession of a controlled substance, the district court sentenced
her to 12 to 32 months consecutive to her sentence in the conspiracy to
commit grand larceny case, and the district court did not give Newman
any credit for time served. Newman received parole on June 10, 2015, so
we presume that she is currently subject to the district court's sentencing
order and could be required to return to prison if she violates the terms of
her parole. Accordingly, we will reach the merits of Newman's appeal.
Whether the district court plainly erred in sentencing Newman
Newman concedes that she did not object when the district
court considered her status as a pregnant drug addict in determining her
sentence or when it ordered consecutive sentences. However, she argues
that the court's error was plain and impacted her due process right to be
sentenced for her crimes, not her status as a pregnant drug addict. She
contends the court sentenced her as it did solely to keep her incarcerated
until her child was born. Newman does not contend that consecutive
sentences violated Nevada law; she contends that the court
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inappropriately considered her status as a pregnant drug addict when it
decided whether to order consecutive or concurrent sentences.
When a party fails to object to a trial court error, appellate
review is precluded unless the error was plain. Anderson v. State, 121
Nev. 511, 516,
118 P.3d 184, 187 (2005). In determining whether an error
was plain, we examine the following: "whether there was error," "whether
the error was plain or clear," and "whether the error, affected the
defendant's substantial rights." Id. (internal citations and quotation
marks omitted). The defendant must show "actual prejudice or a
miscarriage ofjustice." Id.
Nevada's sentencing courts have "discretion . . . to consider a
wide, largely unlimited variety of information to insure that the
punishment fits not only the crime, but also the individual defendant"
Martinez v. State, 114 Nev. 735, 737-38,
961 P.2d 143, 145 (1998). But our
precedents have set forth circumstances in which we will reverse a
sentence that is within the statutorily prescribed limits- (1) when the
record "demonstrate [s] 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, 93-94,
545 P.2d
1159, 1161 (1976); (2) when "the statute fixing punishment is
unconstitutional," Blume v. State, 112 Nev. 472, 475,
915 P.2d 282, 284
(1996) (internal citations and quotation marks omitted); (3) when "the
sentence is so unreasonably disproportionate to the offense as to shock the
conscience," id.; and (4) when the court "consider[s] a defendant's
nationality or ethnicity in its sentence determination," Martinez, 114 Nev.
at 738,
961 P.2d at 145.
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However, we have previously upheld a sentence where the
district court considered a defendant's immigration status. See Ruvalcaba
v. State, 122 Nev. 961, 963,
143 P.3d 468, 469 (2006). In Ruvalcaba, the
defendant objected to the Presentence Investigation Report (PSI) because
it referenced "his immigration status and illegal re-entry into the United
States following deportation." At the sentencing hearing, the judge
sentenced the defendant to a term of imprisonment instead of ordering
probation and said that the sentence was not a result of the defendant's
status as a Mexican national. Id. "Rather, the judge expressed concern
that Ruvalcaba would be unable to comply with any probationary sentence
because he would likely be deported upon his release from custody." Id.
In affirming the sentence, we stressed that the lower court "did not
sentence Ruvalcaba more harshly based on ethnicity or nationality" or
because of "any animus towards illegal aliens." Id. at 964,
143 P.3d at
470. We noted that the lower court "denied Ruvalcaba's request for
probation because, as an illegal alien, Ruvalcaba would likely be deported
if he received probation and would thus ultimately avoid punishment." Id.
In the end, we concluded that the district court correctly considered the
defendant's status "to the limited extent indicated." Id. at 965,
143 P.3d
at 471.
The record here does not reflect that the district court plainly
erred when it considered Newman's status as a pregnant addict in
deciding to impose a consecutive sentence. Aside from being a pregnant
addict, the court sentenced Newman as it did because she committed two
crimes and had numerous probation violations. The district court also
wanted to assist Newman in safely delivering her baby by giving her
access to better medical resources in prison than she would have received
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in the jail system—a goal Newman apparently shared at the time of
sentencing. The court also noted that if it did not order Newman to serve
consecutive sentences, she would not receive any additional punishment
for her new crimes because of the credit she would receive toward her
sentence for conspiracy to commit grand larceny. Accordingly, like in
Ruvalcaba, we conclude the district court properly considered Newman's
status for the limited purpose of sentencing her in the most appropriate
manner.
Newman additionally argues that the U.S. Supreme Court, in
Robinson v. California, 370 U.S. 660, 662, 667 (1962), held that drug
addiction is a status not an act and that a state violates the constitutional
protection against cruel and unusual punishment by incarcerating a •
person for his or her addiction to narcotics. Newman's reliance upon
Robinson is misplaced because the holding in Robinson does not prohibit a
district court from considering a defendant's status as a drug addict in
fashioning a sentence. See id. The Robinson Court held that the lower
court violated the defendant's Fourteenth Amendment rights by
imprisoning him because the law criminalized drug addiction even when a
person "has never touched any narcotic drug within the State or been
guilty of any irregular behavior there." Id. In contrast, the district court
here did not imprison Newman because being a pregnant drug addict
violates some Nevada law; the court imprisoned her because she violated
the terms of her probation in one case and was convicted in another case.
Although the court clearly considered Newman's status as a pregnant
addict when it sentenced her, Newman was not subject to the court's
jurisdiction because of her status as a pregnant addict. Instead, she was
subject to the district court's jurisdiction because she violated the terms of
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her probation in a gross misdemeanor case and was convicted of a
separate category E felony.
Newman also relies upon the case of State v. Ikerd, 850 A.2d
516, 518 (N.J. Super. Ct. App. Div. 2004), for the proposition that a trial
court abuses its discretion when it sentences "a pregnant, drug-addicted
woman who has violated the conditions of her probation ... to prison for
the avowed purpose of safeguarding the health of her fetus." However,
Ikerd, besides not being binding upon this court, is distinguishable. Ikerd
was convicted for acts of welfare fraud, sentenced to probation, and
required, among other things, to complete a drug treatment program. Id.
After she violated the terms of her probation, the court revoked probation
and sentenced Ikerd to prison, "[n] ot because we want to punish her, but
because we want to save the baby." Id. at 519. The trial court even
explained that it would consider releasing Ikerd from custody when she
delivered her baby or if she lost her baby. Id. at 520. The appellate court
reversed the lower court's decision because "the extent of the punishment
imposed upon Ikerd resulted solely from her status as a pregnant addict.
It bore no relationship to the offense that she initially committed, was
excessively punitive, and accomplished no legitimate penal aim." Id. at
521 (emphasis added).
Unlike in Ikerd, Newman's punishment is related to her
crimes. She was originally convicted of conspiracy to commit grand
larceny and then (after receiving probation) picked up new charges,
violated the terms of probation, was kicked out of drug court, quit the City
of Refuge program, violated several other terms of probation, and picked
up more new charges. The district court did not make any provisions for
Newman's release following the birth of her baby, and the court stated
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that keeping Newman off of the street was its main concern, not its sole
concern. This at least implies that Newman's status as a pregnant addict,
although the most significant, was not the only factor the court considered.
Additionally, we must review for plain error due to Newman's
failure to object in the lower court. This places a burden on Newman that
she cannot meet. The record before us shows Newman's claim that the
district court should not have considered her status as a pregnant drug
addict is disingenuous. At the beginning of the hearing in district court,
Newman's counsel initiated the discussion of Newman's status as a
pregnant addict and the importance of safeguarding her unborn child.
Then, after further discussion about running the sentences for the two
convictions consecutively or concurrently, Newman's counsel further
explained that Newman should be incarcerated to protect her unborn
child. Indeed, a comprehensive reading of the transcript of that hearing
convinces us that Newman wanted the district court to consider her status
as a pregnant addict when it sentenced her. Defense counsel, the
prosecutor, and the district court actually worked together to fashion a
sentence to accomplish Newman's goal of being imprisoned when her child
was born to prevent Newman from further drug use and provide her with
access to better medical resources than she would have had if she were in
jail or released from custody.
Our decision is based upon the unique facts of this case.
Nothing in our opinion today should be construed to indicate that courts
should consider a defendant's status as a pregnant addict when imposing
a sentence. But because Newman neglected to preserve this issue for
appellate review and because Newman both participated in and initiated
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the lower court's consideration of her status as a pregnant addict, we
must affirm the lower court's decision.
For the reasons set forth above, we conclude that the district
court did not err when it considered Newman's status as a pregnant addict
at the time of sentencing. Therefore, we dismiss Newman's appeal in
Docket No. 67756 because her sentence has expired and affirm the district
court's judgment of conviction in Docket No. 67763.
ic\CAk J.
Cherry
We concur:
Gibbons
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