132 Nev, Advance Opinion 32.
IN THE SUPREME COURT OF THE STATE OF NEVADA
JUSTIN PATRICK KELLEY, No. 67777
Appellant,
vs.
THE STATE OF NEVADA,
MEP
Respondent.
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MAC K LINDEMAN
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BY MA
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Appeal from a judgment of conviction, pursuant to 'guilty
plea, of one count of felony eluding a police officer. Fourth Judicial
District Court, Elko County; Alvin R. Kacin, Judge.
Reversed.
Frederick B. Lee, Jr., Public Defender, and Roger H. Stewart, Chief
Deputy Public Defender, Elko County,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Mark D. Torvinen,
District Attorney, and Jonathan L. Schulman, Deputy District Attorney,
Elko County,
for Respondent.
BEFORE DOUGLAS, CHERRY and GIBBONS, JJ.
OPINION
By the Court, DOUGLAS, J.:
In this appeal, we are asked to determine whether the charge
of misdemeanor reckless driving, NRS 484B.653(1)(a), is a lesser included
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offense of felony eluding a police officer, NRS 484B.550(3)(b). Because we
conclude that reckless driving is a lesser included offense of felony eluding
a police officer as charged in this case, we conclude that appellant may not
be punished for both crimes.
FACTS AND PROCEDURAL HISTORY
On February 8, 2014, appellant Justin Patrick Kelley drove an
all-terrain vehicle (ATV) through the city of Wells in Elko County. A
deputy sheriff noticed Kelley driving the vehicle without brake lights or
turn signals. The deputy followed Kelley, who then drove on the left side
of the road facing oncoming traffic. Soon after, the deputy activated his
overhead lights and police siren. Kelley did not stop, and a chase ensued.
After they drove through several streets, with Kelley surpassing the speed
limit, the deputy finally stopped Kelley and arrested him. Kelley was
charged with felony eluding a police officer, pursuant to NRS
484B.550(3)(b). Based on the same incident, Kelley was charged with
reckless driving, pursuant to Wells City Code 8-11-1 (NRS 484B.653(1)(a)).
On November 14, 2014, Kelley pleaded no contest to
misdemeanor reckless driving. Then, on December 2, 2014, Kelley moved
to dismiss the charge of felony eluding a police officer on the basis of
double jeopardy. Ultimately, the district court decided that misdemeanor
reckless driving did not constitute a lesser included offense of felony
eluding. On January 5, 2015, Kelley pleaded guilty to felony eluding.
This appeal follows.
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DISCUSSION
Kelley argues that the district court erred in failing to dismiss
his charge of felony eluding a police officer on the basis of double
jeopardy.' According to Kelley, double jeopardy applies in this case
because he was already convicted of a lesser included offense
(misdemeanor reckless driving, pursuant to NRS 484B.653(1)(a)) and,
thus, cannot be convicted of a greater offense (felony eluding, pursuant to
NRS 484B.550(b)(3)). Kelley also argues that the plain language of the
statutes pertaining to both offenses, NRS 484B.653 and NRS 484B.550,
further demonstrates this relationship. We agree.
Generally, this court reviews a claim that a conviction violates
the Double Jeopardy Clause de novo. Davidson v. State, 124 Nev. 892,
896,
192 P.3d 1185, 1189 (2008). De novo review applies to both the
constitutional issues and statutory interpretation involved. Jackson v.
State, 128 Nev., Adv. Op. 55, 291 P.3d 1274, 1277 (2012).
Under the Double Jeopardy Clause, a criminal defendant may
not be punished multiple times for the same offense without clear
authorization from the legislature. LaChance v. State, 130 Nev., Adv. Op.
29, 321 P.3d 919, 923 (2014) (citing Missouri v. Hunter,
459 U.S. 359, 366
(1983)). In determining whether multiple convictions violate the Double
Jeopardy Clause, this court applies the test in Blockburger v. United
States, 284 U.S. 299 (1932). See Estes v. State,
122 Nev. 1123, 1143, 146
'Kelley did not include a copy of the plea agreement in his appendix,
but both parties agree in their appellate briefs that the plea agreement
reserved Kelley's right to a review of the district court's adverse decision
on his motion to dismiss. See NRS 174.035(3).
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P.3d 1114, 1127 (2006). Pursuant to Blockburger, "two offenses are
separate if each offense requires proof of a fact that the other does not."
Estes, 122 Nev. at 1143,
146 P.3d at 1127. Thus, under Blockburger, "if
the elements of one offense are entirely included within the elements of a
second offense, the first offense is a lesser included offense and the Double
Jeopardy Clause prohibits a conviction for both offenses." Barton v. State,
117 Nev. 686, 692,
30 P.3d 1103, 1107 (2001), overruled on other grounds
by Rosas v. State, 122 Nev. 1258,
147 P.3d 1101 (2006). "The general test
for determining the existence of a lesser included offense is whether the
offense in question cannot be committed without committing the lesser
offense." Mdntosh v. State, 113 Nev. 224, 226,
932 P.2d 1072, 1073 (1997)
(internal quotation omitted).
NRS 484B.653 governs the offense of reckless driving, while
NRS 484B.550 governs the offense of felony eluding. In relevant part,
NRS 484B.653 provides:
1. It is unlawful for a person to:
(a) Drive a vehicle in willful or wanton
disregard of the safety of persons or property.
••••
A violation of paragraph (a) .. . of this subsection
or subsection 1 of NRS 484B.550 constitutes
reckless driving.
3. A person who violates paragraph (a) of
subsection 1 is guilty of a misdemeanor.
NRS 484B.653(1), (3). In relevant part, NRS 484B.550
provides:
1. Except as otherwise provided in this
section, the driver of a motor vehicle who willfully
fails or refuses to bring the vehicle to a stop, or
who otherwise flees or attempts to elude a peace
officer in a readily identifiable vehicle of any police
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department or regulatory agency, when given a
signal to bring the vehicle to a stop is guilty of a
misdemeanor.
3. Unless the provisions of NRS 484B.653
apply if, while violating the provisions of
subsection 1, the driver of the motor vehicle:
(a) Is the proximate cause of damage to the
property of any other person; or
(b) Operates the motor vehicle in a manner
which endangers or is likely to endanger any other
person or the property of any other person,
the driver is guilty of a category B felony . . .
NRS 484B.550(1), (3).
The elements of the felony eluding offense, as charged in this
case, include: (1) driving a vehicle (2) in a manner that endangers or is
likely to endanger any other person or the property of any other person.
NRS 484B.550(1), (3). All of the elements of misdemeanor reckless
driving—(1) driving a vehicle (2) in willful or wanton disregard of the
safety of persons or property, NRS 484B.653(1)(a)—are included in the
elements of the charged offense of felony eluding under NRS
484B.550(3)(b), making misdemeanor reckless driving a lesser included
offense in this case. Because the offense of reckless driving is a lesser
included offense of felony eluding as charged in this case, Kelley could not
be punished for both crimes.
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Accordingly, because Kelley was already convicted of a lesser
included offense for the same act underlying the felony eluding offense, we
conclude that his conviction for felony eluding violates double jeopardy
and we reverse Kelley's conviction for felony eluding a police officer. 2
J.
Douglas
We concur:
J.
J.
Gibbons
2 We note that the State also argues that the two offenses in this case
were directed at different acts. According to the State, Kelley's acts
constituting reckless driving occurred on Moor Avenue and Shoshone
Avenue. In contrast, Kelley's acts constituting felony eluding occurred on
Shoshone Avenue and four other streets. Thus, although the reckless
driving offense originated from the same event as the felony eluding
offense, the City only charged a small part of the entire incident. We
conclude that this contention lacks merit because the acts underlying both
offenses are based on the same conduct. Further, the acts occurring on
Moor Avenue and Shoshone Avenue are subsumed within the acts
occurring on Shoshone Avenue and the additional four streets.
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