139 Nev., Advance Opinion LIU
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
TYLER JAMES BOLDEN, No. 85099-COA
Appellant,
vs.
THE STATE OF NEVADA,
FÏJ E1
Respondent. OCT 19 202
EL
CLERK
BY
C EF DEPUTY CLERK
Appeal from a judgment of conviction, entered pursuant to a
guilty plea, of attempted lewdness with a child under the age of 14 years.
Eighth Judicial District Court, Clark County; Jasmin D. Lilly-Spells, Judge.
Affirmed in part, vacated in part, and remanded.
JoNell Thomas, Special Public Defender, and Melinda Simpkins and Robert
Arroyo, Chief Deputy Special Public Defenders, Clark County,
for Appellant.
Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District
Attorney, and Alexander G. Chen, Chief Deputy District Attorney, Clark
County,
for Respondent.
BEFORE THE COURT OF APPEALS, GIBBONS, C.J., and BULLA and
WESTBROOK, JJ.
COURT OF APPEALS
OF
NEVADA il-14051
MI 1947K
OPINION
By the Court, WESTB.ROOK, J.:
At his sentencing, appellant Tyler James Bolden objected to the
imposition of extradition restitution as well as the cost of a psychosexual
evaluation on the basis that he lacked the ability to pay. Over his objection,
the district court ordered Bolden to pay both the restitution and the full
evaluation cost but waived the $25 administrative assessment fee required
under NRS 176.062(1).
ln this appeal, we consider whether and to what extent the
district court must make an investigative inquiry into a defen.dant's ability
to pay extradition restitution under NRS 179.225(2) before ordering the
defendant to pay that restitution. We also consider whether NRS
176.139(7) requires the district court to make a similar inquiry prior to
requiring the ,defendant to pay the psychosexual evaluation cost.
We conclude that the plain language of NRS 179.225(2). requires
the district court to inquire, prior to sentencing, into the defendant's ability
to pay extradition restitution in light of any existing obligations for child
support, victim restitution, or administrative assessments. NRS
179.225(2)(a)-(c).. The district court's statutory duty is satisfied by asking
the defendant whether they have any such obligations that would be
impacted by the imposition of extradition restitution and by determining
whether the defendant is able to pay such obligations or, alternatively, if
extradition restitution would prevent the defendant from satisfying those
obligations.
In contrast, we conclude that the plain language of NRS
176.139(7) does not require the district court, sua sponte, to conduct a
similar investigative inquiry before requiring a defendant to pay for the cost
COURT OF APPEALS
OF
NEVADA 2
CO) 19•171i ...ea. •
of a psychosexual evaluation. Rather, it is incumbent upon the defendant
to object to the psychosexual evaluation cost based on their inability to pay,
and the defend.ant bears the bui. .den to substantiate that inability to pay
before the court can reduce or waive the psychosexual evaluation cost.
However, once a defendant has done so, the court must mak.e findings On
the record as to the extent of the defendant's ability to pay and must impose
the cost of the psychosexual evaluation only to that extent.
In this case, because the district court did not undertake an
investigative inquiry prior to ordering Bolden to pay extradition restitution
under NRS 179.225(2) or address Bolden's alleged inability to pay the
psychosexual evaluation cost following his timely and substantiated
objection, we affirm the judgment of conviction, vacate the sentence as to
restitution and the cost of . the psychosexual evaluation, and remand for
resentencing.
PROCEDURAL AND FACTUAL HISTOR Y
After bei.ng extradited from Michigan to Nevada, Bolden
entered into negotiations with the State to plead guilty to one count of
attempted lewdness with a child under the age of 14 years. His negotiation
. .
included an agreement to pay extradition restitution, if an.y was ordered,
and an agreement to undergo a psychosexual evaluation pursuant to NRS
1.76.139.
.At the sentencing hearing, the State requested that the court
impose restitution for extradition expenses in the amount of $3525, as well
as the cost of Bolden's psychosexual evaluation in the amount of $1689.30.
Bolden objected to both. the extradition restitution and psychosexual
evaluation cost and claimed. that he did not have the ability to pay either
amount. Bolden specifically referenced NRS 179.225 in support of his
assertion that the extradition restitution should be waived. The district
COURT OF APPEALS
OF
NEVADA 3.
(0) 19471i aiSPIt,
court reviewed NRS 179.225 and stated that it "read that statute only to
say that the Administrative Assessment fee can be [waived.]" After
sentencing Bolden to a term of 42 to 144 months in prison, the district court
di.d "not find a basis to waive the extradition cost" and imposed both the
extradition restitution and psychosexual evaluation cost in full but waived
the $25 administrative assessment required under NRS 176.062(1). Bolden
now appeals, challenging the imposition of the restitution for his extradition
expenses and the cost .of his psychosexual evaluation.
ANALYSIS
In this appeal, we address the following i.ssues: (1) whether and
to what extent NRS 179.225(2) requires the district court to conduct an
investigative inquiry into the defendant's ability to pay before ordering the
defendant to pay extradition restitution, and (2) whether NRS 176.139(7)
imposes a similar investigative requirement on the district court to inquire
as to the defendant's ability to pay the cost of a psychosexual evaluation
before ordering the defendant to pay that cost.
The decision to impose restitution under NRS 176.033(3),
including extradition restitution pursuant to NRS 1.79.225, is a sentencing
determination. Martinez v. State, 115 Nev. 9, 12,
974 P.2d 133, 135 (1999).1
The district court has broad discretion when sentencing a defendant, and
"in the absence of a showing of abuse of such discretion, we will not disturb
the sentence." Parrish, v. State, 116 Nev. 982, 988-89,
12 P.3d 953. 957
(1980) (quoting Deveroux v. State, 96 Nev. 388, 390,
610 P.2d 722, 724
1.We note that although Martinez addressed restitution to victims of
crime Under NRS 176.033(3) (formerly codified as .NRS 176.033(1)(c), see
2019 Nev. Stat.,. ch. 633, § 10.5, at 4382), the same statute provides for.both
restitution to victims of crime as well as restitution to the State of Nevada
or other governmental entity for extradition expenses.
COURT OF APPEALS
OF
NEVADA
(0) 1947H 4441PD
(1980)). "An abuse of discretion occurs if the district court's decision is
arbitrary or capricious or if it exceeds the bounds of law or reason."
Crawford v. State, 121 Nev. 744, 748,
121 P.3d 582, 585 (2005) (quoting
Jackson v. State, 11.7 Nev.. 116, 120, 17 P.3d 998, 1000 (2001)).
Imposition of extradition restitution
nolden first contends that the district • court abused its
discretion when it imposed extradition restitution without first
investigating his ability to pay under NRS 179.225(2).2 To evaluate this
argument, we must engage i.n statutory interpretation, which, like other
questions of law, we review de novo. See Doolin v. State, Dep't of Corr., 134
Nev. 809, 811, 4.
40 P.3d 53, 55 (Ct. App. 2018). "The goal of statutory
interpretation is to give effect to the Legislature's intent." Id. (internal
quotation marks omitted). To determine the Legislature's intent, we begin
by looking at the statute's plain language. Id. In doing so, we "interpret a
rule or statute in harmony with other rules or statutes." Id. (internal
quotation marks omitted).
Here, the relevant language is contained in subsections (2) and
(3) of NRS 179.225:
2. If a person is returned to this State
pursuant to this' chapter or Chapter 178 of NRS and
is convicted of or pleads guilty, guilty but mentally
ill or nolo contendere to, the criminal charge for
which the•person was returned or a lesser criminal
charge, the court shall conduct an. investigatipn. of
the financial status of the person to determine the
• ability to' make restitution. In conducting the
2NRS 179.225 addresses only extradition restitution. Accordingly,
unless specifically noted otherwise, our discussion herein applies only to
extradition restitution and not to any other type of restitution.
COURT OF APPEALS
OF
NEVADA 5
(()) 1947B
•investigation, the court shall determine if the
person is able to pay any existing obligations for:
(a) Child. support;
(b) Restitution to victims of crimes; and
(c) Any administrative assessment required
to be pa.id pursuant to NRS 62E.270, 176.059,
176.0611., 176.0613, 176.062 and 176.0623.
3. If the court determines that the person is
financially able to pay the obligations described in
subsection 2, it shall, in addition to any other
sentence it may i.mpose, order the person to rnake
restitution for the expenses incurred by the Office
of the Attorney General or other governmental
entity in returning the person to this State. The
court shall not order the person to make restitution
if payment . of restitution will prevent the person
frOm paying any existing obligations 'described in
subsection 2. Any amount of restitution .remaining
unpaid•cdnstitutes a civil liability arising upon the
date of the completion of the sentence.
Under the plain language of NRS 179.225(2), the district court
is required to undertake an investigative inquiry in all eXtradition cases
that result in a conviction. See Thomas v. State, 88 Nev. 382, 384, 4:
98 P.2d
1314, 1315 (1972) (recognizing that "shall" is generally construed as
mandatory):- Th.e subject matter of that inquiry is mandated by statute: the
court "shall." inquire into "the financial status ofthe : person to determine
the ability to make restitution." NRS 1.79.225(2). In doing so, the district
court "shall" inquire if t.he d.efendant has the ability. to pay any existing
obligations for child Support, victim restitution, or administrative
assessments aa . listed in NRS 179.225(2)(a)7(c).
The purpose of the investigative inquiry is not to determine
whether the defendant has the present ability to pay extradition restitution
in a general sense. Rather, the second sentence of NRS 179.225(2) narrows
COURT OF APPEALS
OF
NEVADA 6
f()) 1947ll
the scope of that inquiry to require only an investigation into the
defendant's ability to pay existing obligations within the three categories
listed in NRS 179.225(2)(a)-(c): child support, victim restitution, and
administrative assessment's..
This limited investigatory purpose is further supported by the
text of NRS 179.225(3), which mandates two alternative 'outcomes,
depending on the defendant's ability to pay for the specific'obligations listed'
in subsection 2. If the court determines that the defendant is "financially
able to pay the obligations described in subsection 2," then extradition
restitution "shall" be ordered. See Thomas, 88 Nev. at 384,
498 P.2d at 1315.
On the oth.er hand, the court "shall not" order the defendant to pay
extradition restitution "if payment of restitution will prevent th.e person
from paying" the existing obligations listed i.n subsection 2. NRS
.179.225(3).
Because the consequences set forth in subsection 3 relate only
to the defendant's ability to pay for the three categories of obligations listed
in subsection 2, it follows that the scope of the court's investigative inquiry
in extradition restitution cases is limited to ascertaining the defendant's
ability to pay, fbr the enumerated obligations. See City of Henderson v.
Amado, 133 Nev. 257, 259,
396 P.3d. 798, 800. (2017) (explaining that
appellate courts construe statutes "as a whole," while readi.ng statutes "in
a manner that makes the words and phrases essential and the provisions
consequential"); see also K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291
(1988) ("In ascertaining the plain meaning of the statute, the court must
look to the particular statutory language at issue, as well as the language
and design of the statute as a whole.").
COURT OF APPEALS
OF
NEVADA 7
(01 1947U 42*->
Alth.ough the plain language of NRS 179.225(2) is not
ambiguous, .and th.us i.t is not necessary to resort to 'legislative history, we
nevertheless note that -the legislative history supports our construction of•
the statute. See Gilman v. Clark Cty. Sch. Dist., 139 Nev., Adv. Op. 7,
527
P.3d 624, 629 (Ct. App. 2023). When. NRS 1.79.225(2) was enacted, the
Legislature intended the obligations listed in NRS 179.225(2) to be
prioritized over extradition restitution in this situation. Hearing on A.B.
4.65 Before the S. Judiciary Comm., 67th Leg. (Nev., May 14, 1993).3 The
legislative history of NRS 179.225 indicates that the purpose of the statute
was to ensure that existing obligations for child support, victim restitution,
and administrative assessments were paid; this further comports with the
plain language of N.RS 179.225(3), which exclusively concerns the payment
of existing obligations and prohibits the district court outright from
:imposing extradition restitution if doing so would prevent the satisfaction.
of those obligations.
Therefore, when conducting an investigation under NRS
179.225(2), the district court is required to ascertain whether the defendant
has any existing obligations listed in. NRS 179.225(2)(a)-(c) and, .if so,
•
determine if the imposition of extradition restitution would. impact the
defendant's ability to satisfy those obligations. The court is not required to
3 We also recognize that the importance : of prioritizing victim
•
restitution was reaffirmed. by the passage of MarSy's Law, which entitles
crime victims "to have all .monetary payments, money and: property
collected .from any pers.on who has been ordered to make restitution be first
applied to paY the amounts ordered as restitution to the victim." See Nev.
Const. art. 1, § .8A(1)(p).
COURT OF APPEALS
OF
N EVADA 8
lin 1947B
independently investigate whether the defendant has the ability to pay
restitution generally outside the parameters of those existing obligations.4
Notably, NRS 179.225(2) is silent regarding how the district
court must conduct this investigation. Because the plain language of the
statute does not include .any specific procedural requirements, the
particular manner in which the district court undertakes this investigation
remains in the coures di.scretion. Thus, the district court may satisfy its
statutory duty by asking the defendant brief questions on the record to
ascertain whether the d.efendant has any existing obligations listed in NRS
179.225(2)(a)-(c), their ability to pay such obligations, and whether ordering
extrachtion restitution would prevent the d.efendant from paying such
obligations.5 The district court's finding regarding a defendant's ability to
4 We note that when determining restitution to a crime victim, the
district court is not required to consider the defendant's ability to pay. See
Martinez, 115 Nev. at 13,
974 P.2d at 135. (concluding thaL"there is no
requirement jhat the district . court consider a defendant's ability to . pay in
determining at sentencing the amount of restitution" to a battery victim
(citing NRS•176.015)). Unlike restitution to a crime'victim, which. does not
require, consideration of a defendant's ability to . pay in the procedures
outlined in NRS 176.015, see id., the inquiry Outlined in NRS 179.225(2)
does expressly require the district court to consider the defendant's ability
to pay before imposing extradition. restitution to the extent that it. impacts
the defendant's ability to pay the existing obligations 6iiumei.ated in the
statute. • Nothing •in this opinion should be construed as restricting the
district court's discretion . beyond what _is already provided by law i.n
deterniining the priority of payments'. See," e.g., Nev. Const. art. 1§ 8A(1)(p)
(prioritizing Payments to satisfy victim restitution); NRS 209.463(3), (4)
(detailing the priority in which deductions from inmates' wages must be
applied.)..
. .
5We. note that both the child supPort obligations enumerated in NRS
. .
179..225(2)(a) and the "administrative assessments required to . be paid"
enumerated jn NRS 179.225(2)(c) (emphasiS added) . contemplate
COURT OF APPEALS
OF
NEVADA . 9
(0) 1947B
pay is a factual determination entitled to deference on appeal. See, e.g.,
Sunseri u. State, 137 Nev. 562, 564,
495 P.3d 127, 131 (2021) ("Mhis court
gives deference to the di.stri.ct court's factual findings as king as they are
supported by the record.").
The State argues on appeal that the district court did n.ot abuse
its discretion in imposing the extradition restitution in this case because
Bolden agreed to par this restitution in his plea agreement. While the plea
agreement states that Bolden will be- ordered to reimburse th.e State of
Nevada for any expenses related to his extradition, the State fails to
demonstrate that this plea provision absolved the district court of its duty
to ensure th.at Bolden would be able to pay the obligations listed in NRS
179.225(2). Further, requiring the district court to impose extradition
restitution without considering the obligations in NRS 179.225(2)(a)-(c)
would subvert the legislative intent of the statute to prioritize the existing
obligations over extradition restitution. See Hearing on A.B. 465 Before the
S. Judiciary Comm., 67th Leg. (Nev., May 14, 1993).
Bolden contends that when the district court waived the $25
administrative assessment,. it was precluded from imposing extradition
restitution under NRS 179.225(3) because the waiver constituted a finding
that Bolden lacked the ability to pay extradition restitution. However, the
record does not reflect that the district court made any express finding
regarding Bolden's ability to pay restitution.
••
prospective payments. Accordingly, the statute clearly indicates that the
district court should consider not just preexisting obligations, but also those
being imposed contemporaneously in the case before the court. See Ford u.
State, 127 Nev. 608, 622 n.8,
262 P.3d 11.23, 1132 n.8 (2011) (stating the
supreme court has "long adhere[d] to the doctrine of noscitur a sociis (words
are known by—acquire meaning from—the company they keep)").
COURT OF APPEALS
OF
NEVADA 10
(0) 19.17B relDr,
In this ca.se, because the record does not reflect that the district
court investigated whether Bolden had any exi.st.ing obligations under NRS
179.225(2)(a)-(c) that would be impacted by an, : award of extradition
restitution, we ,cannot determine if the court was required to impose or
prohibited from imposing restitution under NRS 179.225(3).6 Because the
district court • imposed extradition restitution without conducting the
investigative inquiry required under NRS 179.225(2), we conclude that the
district court abused its discretion.
On remand, we direct the district court to comply wi.th the
mandatory provisions of NRS 1.79.225. The court shall inquire whether
Bolden has existing obligations for child support, victim restitution, or
administrative assessments. If Bolden has existing obligations, then the
court must make a determination on the record as to whether he is able to
pay such . obligations or, alternatively, if extradition restitution would
prevent Bolden from satisfying those obligations; NRS 179.225(3) either
requires the court to impose or prohibits the court from impOsing
extradition restitution based on the outcome of that determination.
Imposition of the psychosexual evaluation cost
We next turn to Bolden's second contention, that the district
court erred when it imposed the cost of Bolden's psychosexual evaluation
"A . presentence investigation report can provide information
regarding a defendant's -existing' obligations. See NRS 176A.200 ("The
Division. shall:inquire i.nto the Circumstances of the offense, criminal record,
social .history and present condition of the defendant."); NRS 176.145(1)
(requiring the report to contain information regarding the defendant's
financial condition, the financial loss to the -victim, and whether the
defendant has an obligation for the support of a child). Tlowever, the district
court still must investigate and determine whether the in.formation in the
presentence investigation report i.s accurate as of the time of sentencing.
COURT OF APPEALS
OF
NEVADA 11.
(0) 1947B 4410.
without first conducting an inquiry into his ability to pay or making factual
findings regarding his inability to pay. While we find that the districtcourt
abused its discretion by fai.ling to account for Bolden's inability to pay .under
these circumstances, we disagree with Bolden's claim that the•district Court
is, sua sponte, required to conduct an investigative inquiry, similar to that
required by NRS 179.225(2), befbre imposing the cost of' a psychosexual
evaluation.
NRS 176.139(7) states, 'If a psychosexual evaluation is
conducted pursuant to this section, the court shall . . . [oirder the defendant,
to the extent of the defendant's financial ability, to pay for the cost of the
psychosexual evaluation." Unlike NRS 179.225(2), which expressly
provides. that the district court must undertake an. investigative inquiry to
determine the defendant's ability to pay . when . determining extradition
restitution, NRS • 176.139(7) states only that the court shall order the
defendant to pay the cost of the psychosexual. evaluation "to the extent of
the defendant's financial ability." On its face, the plain language of NRS
176.139(7) does not require the district court to initiate any investigative
inquiry. Ramos v. State, 137 Nev. 721, 722,
499 P.3d 1178, 1.180 (2021)
(stating that when interpreting a statute, the appellate courts first look to
the statute's plain language to determine its meaning and will enforce it as
written if the language is clear and unambiguous); cf. NRS 179.225(2).
"Nevada follows the maxim 'expressio uthus est exclusio
alterius,' the expression of one thing is the exclusion of another." State u.
Javier C., 128 Nev. 536 541,
289 P.3d 1194, 1197 (2012). Additionally,
"Nevada law also provides that omissions of subject matters from statutory
provisions are presumed to have been intentional." Dep't of Tax'n v.
DaimlerChryster Servs. N. Am., LLC, 121 Nev. 541, 548,
119 P.3d 135, 13.9
COURT OF APPEALS
OF
NEVADA 12
(0) I947B
(2005).7 Because NRS 179.225(2) contains an express obligatign that the
district court must .conduct an inquiry into the defendant's ability to pay
before imposing extradition restitution, the omission of similar language
from NRS 176.139(7) is presumed intentional.8 Id. Therefore, we decline
to read an investigative obligation into NRS 176.139(7) where the statute
does . not expressly require it. See Abid v. Abid, 133 Nev. 770, 773,
406 P.3d
476, 479 (2017) (declining to read a suppression. remedy into a statute,
"especially when our Legislature has proven in the criminal context that it
knows how to write one").
Because NRS 176.139(7) does not require the court to initiate
an investigative inquiry into the defendant's ability to pay prior to ordering
the defendant to pay the cost of a psychosexual evaluation, it is incumbent
upon the defendant to object to the imposition of the cost. See deremias v.
State, 134 Nev. 46,
412 P.3d 43 (201.8) ("The failure to preserve an
error . . .,forfeits the right to assert it on appeal."). If the defendant objects
to the psychosexual. evaluation cost based on an inability to pay that
amount, then the defendant must also ,provide substantiation of their
7 See also, J.A. Cor6,,AdMinistrative Laiv and the Interpretation of
Statutes, 1 U. Toronto L.J. 286, 298 (1936):•
[1]f Parliament in legislating speaks only of specific
things and specific situations, it is a legitimate
inference that the particulars exhaust the
legislative will. The particular which is• omitted
from the particulars mentioned is the .casus
omissus, which the judge cannot supply because
that would amount to legislation.
8We• note that the pertinent .portion of NRS 179.225 was enacted in
1993, see 1993 . Nev. Stat., ch. 331., § 3, at 935-36; and the pertinent portion.
of' NRS 176.139 was enacted .in 1.997, see 1997 Nev. Stat., ch. 449, § 3, at
1638.
COURT OF APPEALS
OF
NEVADA 13
(0) 1).47F ADD
inability to pay.. Rodriguez v. Eighth Judicial Dist. Court, 120 Nev. 798,
805,
102 P.3d 41, 4.6 (2004) ("The initial burden of establishing indigency is
on the defendant." (citing to Nikander v. •Dist. Court in & for First Judicial
Dist., 711 P.2d 1260, 1262 (Colo. 1986))); see also Widdis v. Second Judicial
Dist. Court, 114 Nev.. 1224, 1229, 968 P.2d 1.165, 1168 (1998) (placing the
burden "squarely.on the defendant" to demonstrate indigency).
Like an indigency determination, the determination of a
defendant's ability to pay the cost of a psychosexual evaluation is a factu.al
determination that remains within the sound discretion of the district court.
See Rodriguez, 120 Nev. at 807,
102 P.3d. at 4.7 (citing Nikander, 711 P.2d
at 1262). When determining the defendant's ability to pay, the court may
consider evidence such as whether the defendant was represented by
appointed counsel, a financial affidavit that establishes indigency, the
presentence investigation report, the defendant's current or prospective
custody status, or . other . evidence of their financial inability to pay the
psychosexual evaluation cost. See Gilbert v. State, 99 Nev. 702, 704 n.1,
669
P.2d 699, 700 n.1 (1983) (noting appellant's indigency status was supported
in the presentence report and because appellant was represented by a
public. defend.er); Nikander, 711 P.2d at 1262 (statinv that factors to
consider when determining indigency "include whether the defendant has
any dependents, whether he is employed, income from all sources, real and
personal property owned, extent of any indebtedness, necessary living
expenses," and state and federal poverty guidelines); cf. Widdis, 114, Ney. at
1229-30, 968 P.2d at • 1168-69 (issuing a writ of mandamus directing the
district court to make an indigency determination because an affidavit of
indigency was filed while appellant was incarcerated, but the appellant was
subsequently released on bail and began immediate full-time employment).
COURT OF APPEALS
OF
NEVADA 4
(0) 1947R aylri, •
• If the court d.etermines th.e defendant is indigent or unable• to
pay the full psychosexual evaluation cost, the district court must reduce
that cost. NRS 176.139(7). Unlike NRS 179.225(3), which prohibits the
court frorn •
any • extradition restitution under certain
imposing
circumstances, NRS 1.76.139(7) requires the court to order the psychosexual
evaluation cost only "to the extent of the defendant's •financial ability." The
proviso "to the extent of" immediately precedes the limitation regarding the
defendant's ability to pay and qualifies the district court's otherwise
mandatory obligation to impose the psychosexual evahmtion cost. See State
v. Beemer, 5]. Nev. 1.92, 192, 272 P. 656, 658 (1.928) (explaining that the
natural and appropriate office of the proviso being to restrain or qualify
some preceding matter," a statutory proviso "should be construed with
reference to the immediately preceding parts of the clause to which it is
attached." (internal quotation marks omitted)).
'in this case, Bolden made a timely objection to the psychosexual
evaluation cost based on his inability to pay. Although we note that Bold.en
made only bare assertions of his inability to pay, he was also represented in
court; proceedings by. the Clark County Special Public Defender's Office, and
therefore, the lower court, had already made a finding of indigency that
would entitle .Bolden to the appointment of counsel. Moreover, the State
does not seem to dispute Bolden's indigent status. Gilbert, 99 Nev. at 704
n.1, 669 P.2d at •70. 0 13..1') While NRS 176.1.39(7) does not mandate that the
• 9Bol den contends on appeal that the district court's file coptained . his
financial affidavit, which Bolden subthitted to qualify for the' appointment
of counsel and which•verified his indigent status. The State disagrees as to
Bolden's specific assets and income identified in the financial, affidavit but
otherwise does not dispute that the financial affidavit was available to the
district court.
COURT OF APPEALS
OF
NEVADA
15
(()) 1447H ADP .
psychosexual evaluation cost be waived in every circumstance where there
h.as been a finding of indigency, Bolden's timely objection, coupled with
evidence of his indigent status, was sufficient to require the district court to
evaluate the psychosexualevaluation cost in relation to Bolden's ability to.
pay in whole or in part and make findings on the record.. Becanse the
district court made no findings as to Bolden's ability to pay.the psychosexual
evaluation Cost before it imposed the cost in full, we conclude that the
district court abused its discretion. On remand, we direct the district court
to consider Bolden's ability to pay for the psychosexual evaluation and make
findings on the record. In doing so, we remind the court that it shall impose
such cost only "to the extent of the defendant's financial ability{ ] to pay" it.
NHS. 176.139(7).
CONCLUSION
We conclude that NRS 1.79.225(2) requires the district court to
undertake an investigative inquiry prior to imposing extradition
restitution. In this case, the district court abused its discretion by imposing
the extradition restitution without first determining whether Bolden had
the ability to pay any existing obligations for child support, victim
restitution, or administrative assessments. As a result, the court could not
determine whether imposing restitution was mandatory or prohibited
under NRS 1.79.225(3).
Further, while the district court is not required to undertake a
similar investigative :inquiry before imposing the cost of a psychosexual
evaluation under NRS 176.139(7), the court is statutorily required to
impose the cost only to the extent of the defendant's ability to pay. Bolden
timely objected. on the basis of his inability to pay, which was supported by
evidence in the record, and the district court abused its discretion by
imposing the full cost without first evaluating :Bolden's ability to pay a.nd
COURT OF APPEALS
OF
NEvADA 16
(0) I947B 4401D
mak.ing findings• on the record. Accordingly, we affirm the judgment of
conviction, but we vacate Bold.en's sentence as to extradition restitution and
the cost of the psychosexu.al. evaluation. and remand to th.e district court for
resentencing.m.
7
Westbrook
We concur:
1°We also conclude that the district court erred by failing to impose
the $25 administrative assessment as mandated by NRS 176.062(1). The
statute provides that the court "shall" impose the assessment and does not
include any waiver provisions. On remand, we direct the district court to
impose the administrative assessment.
COURT Of APPEALS
OF
NEVADA 17
(0) 1947F. .4iPp>
