134 Nev., Advance Opinion act(
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
TRACEY W. VICKERS, No. 72352-COA
Appellant,
vs.
JAMES E. DZURENDA, DIRECTOR,
FL
NEVADA DEPARTMENT OF NOV 2 2018
CORRECTIONS; AND HAROLD
WICKHAM, WARDEN, WARM
SPRINGS CORRECTIONAL CENTER, c.:LERX
Respondents.
Pro se appeal from a district court order dismissing a
postconviction petition for a writ of habeas corpus.' First Judicial District
Court, Carson City; James E. Wilson, Judge.
Affirmed.
Tracey W. Vickers, Lovelock,
in Pro Se.
Adam Paul Laxalt, Attorney General, and Heather D. Procter, Senior
Deputy Attorney General, Carson City,
for Respondents.
BEFORE SILVER, C.J., TAO and GIBBONS, JJ.
'This appeal has been submitted for decision without oral argument.
NRAP 34(0(3).
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OPINION
PER CURIAM:
In this opinion, we consider whether an offender who is willing
and able to work but who has not been assigned a job by the Nevada
Department of Corrections (NDOC) is entitled to labor credits pursuant to
NRS 209.4465(2). We also consider whether the change in the ability to
apply credits to minimum sentences brought about by the 2007
amendments to NRS 209.4465 violated the Equal Protection Clauses of the
United States and Nevada Constitutions. For the reasons discussed below,
we answer "no" to both questions.
FACTS
In February 2014, appellant Tracey W. Vickers struck his
victim with a cane. He subsequently pleaded guilty to battery with the use
of a deadly weapon, a category B felony. See NRS 200.481(2)(e)(1). He was
sentenced to 48 to 120 months, which was suspended, and he was placed on
probation for five years. Vickers' probation was revoked the following year.
The district court imposed the original sentence and credited him with 134
days for time spent in presentence confinement, but it did not credit him
with time spent on probation. Vickers admits he has not worked since he
has been in NDOC's custody.
ANALYSIS
Labor credits
Vickers contends he is entitled to labor credits pursuant to NRS
209.4465(2) because he is ready and willing to work. He points out NDOC
does not have enough jobs for all inmates who want to work. Vickers argues
crediting offenders who want to work, but for whom NDOC does not have a
job, furthers the legislative intent behind labor credits—promoting early
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release and incentivizing inmates to remain trouble-free. Accordingly,
Vickers argues, he is entitled to 10 days per month labor credit for each
month he is willing and able to work, regardless of whether he actually
works. Vickers presents a question of statutory interpretation.
The meaning of a statute is a question of law and is thus
reviewed de novo. State v. Catanio, 120 Nev. 1030, 1033,
102 P.3d 588, 590
(2004). A statute's plain meaning informs us of the Legislature's intent,
and where the language is clear and unambiguous, we must give effect to
the apparent intent. Hobbs v. State, 127 Nev. 234, 237,
251 P.3d 177, 179
(2011).
The plain meaning of NRS 209.4465(2) belies Vickers'
arguments. NRS 209.4465(2) grants NDOC's Director the discretion to
"allow not more than 10 days of credit each month for an offender whose
diligence in labor and study merits such credits." (Emphasis added.)
"Diligence" is "a persevering application." Merriam-Webster's Collegiate
Dictionary 350 (11th ed. 2014) (emphasis added). Thus, to be diligent in
labor one must actually apply oneself to the labor. The legislative intent is
clear: Where an inmate has not engaged in any labor, he has not been
diligent in labor, and accordingly, the Director has no discretion under NRS
209.4465(2) to award labor credits. The Department's administrative
regulations are in accord with this intent. See NDOC AR 563.01(2)(A)
(providing for verification to "ensure that inmates who are not assigned to
work or study do not receive work credits"). Here, Vickers admits he has
not worked. Therefore, he is not entitled to labor credits.
Equal protection
Vickers contends the failure to apply statutory good-time
credits he earns pursuant to NRS 209.4465(1) to his parole eligibility
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violates his right to equal protection as guaranteed by the Fourteenth
Amendment to the United States Constitution and Article 4, Section 21 of
the Nevada Constitution. Vickers asserts offenders convicted of the same
category of felony receive disparate treatment under NRS 209.4465 based
upon the date they committed their offenses.
At the heart of the Equal Protection Clauses is the idea that all
people similarly situated are entitled to equal protection of the law. Gaines
v. State, 116 Nev. 359, 371,
998 P.2d 166, 173 (2000); see Armijo v. State,
111 Nev. 1303, 1304,
904 P.2d 1028, 1029 (1995) ("[T]he standard of the
Equal Protection Clause of the Nevada Constitution [is] the same as the
federal standard . . . ."). Thus, the threshold question is whether a statute
treats similarly situated people disparately. Rico v. Rodriguez, 121 Nev.
695, 703,
120 P.3d 812, 817 (2005).
Between the adoption of NRS 209.4465 in 1997 and the effective
date of its amendment in 2007, NRS 209.4465(7)(b) provided that credits
earned pursuant to the statute "[a]ppl[ied] to eligibility for parole unless the
offender was sentenced pursuant to a statute which specifie[d] a minimum
sentence that must be served before a person becomes eligible for parole."
1997 Nev. Stat., ch. 641, § 4(7)(b), at 3175. The Nevada Supreme Court has
considered whether, for offenders sentenced for crimes committed during
this time period, "credits earned pursuant to NRS 209.4465 apply to
eligibility for parole as provided in NRS 209.4465(7)(b) where the offender
was sentenced pursuant to a statute that requires a minimum term of not
less than a set number of years but does not mention parole eligibility."
Williams v. State, 133 Nev. , 402 P.3d 1260, 1261 (2017). It
concluded they did. Id.
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In 2007, NRS 209.4465 was amended to provide exceptions for
how credits earned under the statute were to be applied. NRS 209.4465(8)
was added, providing that offenders who had not committed felonies
involving the use or threatened use of force, "[a] sexual offense that is
punishable as a felony," certain violations of NRS chapter 484C that are
punishable as a felony, and category A or B felonies would have statutory
credits applied to their parole eligibility. See 2007 Nev. Stat., ch. 525, § 5,
at 3177. At the same time, NRS 209.4465(7) was amended to begin, "Except
as otherwise provided in subsection 8." Id. The exclusions in NRS
209.4465(8) were thus clearly intended to abrogate any contrary language
in NRS 209.4465(7). The amendments to NRS 209.4465 became effective
on July 1, 2007. 2007 Nev. Stat., ch. 525, § 22, at 3196.
The version of NRS 209.4465 in effect at the time an offender
committed his or her crime is the one that governs application of credits
toward parole eligibility. See Weaver v. Graham, 450 U.S. 24, 31-33 (1981);
Goldsworthy v. Hannifin, 86 Nev. 252, 255,
468 P.2d 350, 352 (1970); cf.
State v. Second Judicial Din. Court (Pullin), 124 Nev. 564, 567,
188 P.3d
1079, 1081 (2008) ("[T]he proper penalty is the penalty in effect at the time
of the commission of the offense. . . ."). For crimes committed after July 17,
1997, but before July 1, 2007, whether credits apply to an offender's
minimum sentence depends on the verbiage in the sentencing statute. For
crimes committed on or after July 1, 2007, the applicability also depends on
whether the offender's convictions fall within the offenses identified in NRS
209.4465(8)(a)-(d). Thus, NRS 209.4465 has the potential to apply
disparately to offenders convicted of similar offenses based on the date the
offenses were committed. For example, category B felonies typically require
a minimum term of not less than a set number of years but do not mention
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parole eligibility. See, e.g., NRS 193.130(2)(b) ("A category B felony is a
felony for which the minimum term of imprisonment in the state prison that
may be imposed is not less than 1 year and the maximum term of
imprisonment that may be imposed is not more than 20 years. . . ."); NRS
200.481(2)(e)(1) (stating battery with the use of a deadly weapon is
punishable as "a category B felony by imprisonment in the state prison for
a minimum term of not less than 2 years and a maximum term of not more
than 10 years"). Thus, a person who committed battery with the use of a
deadly weapon on June 30, 2007, could have statutory credits applied to his
parole eligibility, while a person who committed the same crime on July 1,
2007, could not.
However, legislation that has the potential to treat offenders
disparately does not necessarily run afoul of the Equal Protection Clauses.
See New Orleans v. Dukes, 427 U.S. 297, 304 n.5 (1976) ("Statutes create
many classifications which do not deny equal protection; it is only 'invidious
discrimination' which offends the Constitution." (quotation marks
omitted)). Indeed, we presume the challenged legislation is constitutional.
Allen v. State, 100 Nev. 130, 135,
676 P.2d 792, 795 (1984).
Equal-protection analysis involves a two-part inquiry. This
court first establishes what level of scrutiny the legislation receives, and
then it examines the legislation under the appropriate level of scrutiny.
Gaines, 116 Nev. at 371, 998 P.2d at 173. Legislation that leads to disparate
treatment but that does not involve a suspect class or impinge upon a
fundamental right is reviewed under the rational basis standard of review.
Id. Under this standard, this court will uphold the legislation so long as
"the challenged classification is rationally related to a legitimate
governmental interest." Id.
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The application of statutory credits is subject only to rational
basis review, see McGinnis v. Royster, 410 U.S. 263, 270 (1973), because
"inmates are not a suspect class," Peck v. Zipf, 133 Nev. „ 407 P.3d
775, 782 (2017), and as "there is no fundamental constitutional right to
parole," Glauner v. Miller, 184 F.3d 1053, 1054 (9th Cir. 1999), there can be
no fundamental constitutional right to receive credit to accelerate a parole
eligibility date, see Greenholtz v. Inmates of the Neb. Penal & Corr. Complex,
442 U.S. 1, 7 (1979) ("There is no constitutional or inherent right of a
convicted person to be conditionally released before the expiration of a valid
sentence."). Thus, disparate treatment under NRS 209.4465 will violate the
Equal Protection Clauses only if the legislation "is so unrelated to the
achievement of any combination of legitimate purposes that we can only
conclude that the legislature's actions were irrational." Allen, 100 Nev. at
136,
676 P.2d at 796 (quoting Vance v. Bradley,
440 U.S. 93, 97 (1979)).
When it comes to sentencing, it seems virtually axiomatic that
offenders may be punished differently for the same crime committed on
different dates. As one court aptly observed, "Legislation must, of necessity,
take effect on some specific date," and thus may "creat[e] two classes of
offenders distinguishable by only the date of offense, conviction, plea, or
sentencing." Doe v. Mich. Dep't of State Police, 490 F.3d 491, 504 (6th Cir.
2007). And the United States Court of Appeals for the Ninth Circuit
specifically held that "Where is no denial of equal protection in having
persons sentenced under one system for crimes committed before [a specific
date] and another class of prisoners sentenced under a different system."
McQueary v. Blodgett, 924 F.2d 829, 834 (9th Cir. 1991) (quoting Foster v.
Wash. State Bd. of Prison Terms et Paroles, 878 F.2d 1233, 1235 (9th Cir.
1989)); see also Leigh v. United States, 586 F.2d 121, 123 (9th Cir. 1978)
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(denying an equal-protection claim challenging different laws that were in
effect depending on when a defendant's case went to trial). Other courts
have reached a similar conclusion. See, e.g., Doe, 490 F.3d at 504-05;
Huggins v. Isenbarger, 798 F.2d 203, 206-07 (7th Cir. 1986); Frazier v.
Manson, 703 F.2d 30, 36 (2d Cir. 1983); State v. Nguyen,
912 P.2d 1380,
1382-83 (Ariz. Ct. App. 1996); Robinson v. State,
584 A.2d 1203, 1206 (Del.
1990); Bergee v. S.D. Bd. of Pardons & Paroles, 608 N.W.2d 636, 644 (S.D.
2000). Discrepancies in the time offenders must serve, even where the
offenders committed similar crimes, is inescapable whenever a legislature
increases or reduces sentences. United States v. Speed, 656 F.3d 714, 720
(7th Cir. 2011).
The 2007 amendments to NRS 209.4465 refined the paroleeligibility calculation. See Williams, 133 Nev. at n.6, 402 P.3d at 1264
n.6 (noting the 2007 change "set additional limitations on the application of
credits to eligibility for parole"). And establishing the time an offender must
spend in prison is a rational governmental purpose, cf. McQueary, 924 F.2d
at 834 ("Improvement in sentencing is [a] rational governmental purpose."
(quotation marks omitted)). The 2007 amendments to NRS 209.4465 were
thus rationally related to a legitimate governmental interest. Accordingly,
any disparate treatment resulting from the date a crime was committed
does not deny offenders equal protection of the law under the United States
and Nevada Constitutions.
CONCLUSION
The plain language of NRS 209.4465(2) requiring "diligence in
labor" means an offender must actually work to earn labor credits. And the
disparate application of statutory credits to parole eligibility based on when
an offender committed an offense is rationally related to a legitimate
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governmental interest and thus does not offend the Equal Protection
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Clauses of the United States and Nevada Constitutions. For these reasons,
we conclude the district court did not err in dismissing Vickers' petition,
and we affirm. 2
, C.J.
Silver
Tao
Arab
/ -rt'frre'
Gibbons
J.
2Vickers also claims he was entitled to credit for time served on
probation. We conclude the district court did not err by denying this claim.
See 2009 Nev. Stat., ch. 447, § 5, at 2513-14; NRS 176A.635(1); Webster v.
State, 109 Nev. 1084, 1085,
864 P.2d 294, 295 (1993).
We have also considered Vickers' claim that he was entitled to the
appointment of postconviction counsel. We conclude the district court did
not abuse its discretion in declining to appoint counsel. See NRS 34.750(1)
(the appointment of counsel is discretionary); Renteria-Novoa v. State, 133
Nev. „ 391 P.3d 760, 760-61 (2017).
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