133 Nev., Advance Opinion 16
IN THE SUPREME COURT OF THE STATE OF NEVADA
TROY LEE MULLNER, No. 71030
Appellant,
vs.
FILED
THE STATE OF NEVADA, DEC 0 7 2017
Respondent.
'at lb r 7,
BY
CHIE DE CLERK
Appeal under NRAP 4(c) from a judgment of conviction,
pursuant to guilty plea, of burglary, two counts of robbery, coercion, two
counts of burglary while in possession of a deadly weapon, two counts of
robbery with use of a deadly weapon, attempted burglary, and possession of
a firearm by ex-felon. Eighth Judicial District Court, Clark County; Valerie
Adair, Judge.
Affirmed.
Jean J. Schwartzer, Las Vegas,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, and Jonathan VanBoskerck, Chief Deputy District
Attorney, Clark County,
for Respondent.
BEFORE DOUGLAS, GIBBONS and PICKERING, JJ.
OPINION
By the Court, PICKERING, J.:
Appellant Troy Lee Mullner appeals his convictions for
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burglary, robbery, coercion, burglary while in possession of a deadly
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weapon, robbery with use of a deadly weapon, attempted burglary, and
possession of a firearm by an ex-felon. We affirm 1
Manner's Sentence as an Habitual Criminal
Mullner argues that the district court should not have
considered his prior conviction from 1984 in sentencing him as an habitual
criminal because the conviction is stale and stems from an offense he
committed as a minor. Mullner also asks this court to adopt a rule
prohibiting a district court from considering juvenile offenses charged up to
adult convictions in habitual criminal sentencing, a rule he contends is
supported by State v. Javier C., 128 Nev. 536,
289 P.3d 1194 (2012). We
review a trial court's adjudication of a defendant as an habitual criminal
under an abuse-of-discretion standard. See Sessions v. State, 106 Nev. 186,
190,
789 P.2d 1242, 1244 (1990).
Manner's Previous Convictions Were Not Stale
A district court may disregard prior convictions that are stale,
trivial, or where habitual criminal adjudication "would not serve the
purposes of the statute or the interests of justice." Id. at 190,
789 P.2d at
1244 (quoting French v. State,
98 Nev. 235, 237,
645 P.2d 440, 441 (1982))
(reversing habitual criminal conviction where a defendant's prior felony
convictions were 23 to 30 years old and for non-violent crimes). Mullner's
three prior convictions span a period of 30 years, and are all for violent
crimes. Further, Mullner's oldest convictions were for burglary and
robbery, the same offenses he most recently committed. Thus, unlike
1 Mullner's conviction was previously affirmed by this court in an
unpublished order. The State filed a motion to publish our order, which we
grant. We issue this opinion in place of our prior unpublished order. NRAP
36(0.
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Sessions, Mullner's prior convictions indicate he is a "career criminall ] who
pose[s] a serious threat to public safety." Id. at 191, 789 P.2d at 1245.
Accordingly, the district court did not abuse its discretion in rejecting
Mullner's argument that his 1984 conviction was too stale to use for
habitual criminal sentencing.
Mailer's Prior Conviction Resulting From an Offense Committed as a
Minor Could Be Used for Habitual Criminal Sentencing
The district court did not abuse its discretion in using Mullner's
charged-up conviction for habitual criminal sentencing. When a juvenile is
convicted and sentenced as an adult, that conviction can enhance a
defendant's punishment as an habitual criminal, provided the court had
general jurisdiction to sentence the juvenile as an adult. 24 C.J.S. Criminal
Procedure and Rights of Accused § 2462 (2016); see also United States v.
Graham, 622 F.3d 445, 455-61 (6th Cir. 2010) (juvenile conduct for which
the accused was charged and sentenced as an adult used as a prior felony
for third strike); Womack v. State, Docket No. 61127 (Order of Affirmance,
February 13, 2013) (prior felony conviction committed as a juvenile used for
habitual criminal sentencing).
Mullner's argument that our decision in State v. Javier C.
supports a rule prohibiting the use of such convictions in habitual criminal
sentencing is unpersuasive. In Javier C., the court held that the criminal
statute for battery committed by a prisoner, NRS 200.481(2)(f), did not
apply to an adjudicated juvenile delinquent because he was not a "prisoner"
under the definition of NRS 193.022, which requires custody in the criminal
context, and neither juvenile justice proceedings nor a delinquent
adjudication are criminal in nature. 128 Nev. at 539-41,
289 P.3d at 1196-
97. Here, the habitual criminal statute applies to a defendant previously
convicted of "[a] ny felony," without regard for whether the conviction could
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have been (but was not) pursued as a juvenile offense. NRS 207.010(1)(b).
A statute's plain meaning controls its interpretation, see Bergna v. State,
120 Nev. 869, 873,
102 P.3d 549, 551 (2004), and we find no ambiguity in
the habitual criminal statute that would support reading it as Mullner asks
us to do. Accordingly, we decline to adopt a ruling prohibiting a district
court from considering felony convictions originating from juvenile offenses
in habitual criminal sentencing.
Mullner's Sentence Does Not Violate the Eighth Amendment
Mullner argues that his sentence is disproportionate because
he did not cause any physical harm and stole only a few thousand dollars.
The district court has "wide discretion" in its sentencing decisions. Allred
v. State, 120 Nev. 410, 420,
92 P.3d 1246, 1253 (2004).
Mullner's sentence does not violate the Eighth Amendment.
Mullner's three prior felonies entitled the court to sentence him as a large
habitual criminal to: (1) life without the possibility of parole, (2) life with
the possibility of parole after a minimum of 10 years, or (3) a definite term
of 25 years, with eligibility for parole after a minimum of 10. NRS
207.010(1)(b). Mullner's sentence of 31 years to life fits within the statutory
scheme and is not disproportionate because it is based on ten separate
counts for violent crimes, including burglary and robbery with the use of a
deadly weapon. Allred, 120 Nev. at 420,
92 P.3d at 1253 ("A sentence within
the statutory limits is not 'cruel and unusual punishment unless . . . the
sentence is so unreasonably disproportionate to the offense as to shock the
conscience.") (quoting Blume v. State, 112 Nev. 472, 475,
915 P.2d 282, 284
(1996)).
Cumulative Error
Individually harmless errors may be cumulatively harmful and
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warrant reversal. Valdez v. State, 124 Nev. 1172, 1195,
196 P.3d 465, 481
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(2008). This court considers "(1) whether the issue of guilt is close, (2) the
quantity and character of the error, and (3) the gravity of the crime
charged." Id. (quoting Mulder v. State,
116 Nev. 1, 17,
992 P.2d 845, 854-
55 (2000)). Because Muliner failed to establish any error on this appeal,
there is none to cumulate.
AFFIRMED.
J.
Pickering
We concur:
—s4 J.
Douglas
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