MacIas (Lucio) v. State C/W 60163/60164 ( 2014 )

 other condition ordered by the court. NRS 484C.340(4). Upon the
offender's successful completion of a program, the court enters a judgment
of conviction for a lesser offense. But, if the offender is not accepted for
treatment, fails to complete treatment, or violates any court-ordered
condition, the court will enter judgment on the original charges. Because
the district courts in this case did not place appellant on probation, as
required by NRS 484C.340(4), we reverse and remand.
I.
The State charged Macias with driving a vehicle under the
influence of alcohol (third offense) under NRS 484.379 1 in three separate
cases.' •Each case involved a distinct DUI incident, and each case was
assigned to a different judicial department. With the assistance of
counsel, Macias entered a guilty plea in each case. In his plea agreements
Macias acknowledged that he could be convicted of a lesser offense—
misdemeanor driving under the influence if the felony DUI court accepted
him and if he successfully completed a program of treatment.
Additionally, he agreed that the district courts would "immediately enter a
judgment of conviction" if the DUI court did not accept him, if he failed to
complete the program of treatment, or if he violated any condition ordered
by the court.
1 In
2009, the Legislature renumbered NRS 484.379 as NRS
484C.110. It did not alter the statutory language.
2Although the violations were technically for Macias's third, fourth,
and fifth offenses, the State filed three criminal complaints for a third
offense because the fourth and fifth offense occurred within weeks of each
other and months after the third offense, while that case was still pending.
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The district courts granted Macias's requests to participate in
a treatment program. As required by NRS 484C.340(4)(a), the district
courts that took his pleas suspended all proceedings. Oddly, however, all
three of the courts failed to place Macias on probation, as required by the
same statute and this court's opinion in Savage v. Third Judicial Dist.
Court, 125 Nev. 9, 19, 200 P.3d 77, 82 (2009) (stating that prior version of
the statute, NRS 484.37941(4)(1), "not only provides the district court with
the authority to place an offender on probation while he is in treatment,
the statute requires it").
Macias complied with the treatment program for nearly two
years before his counselor informed the DUI court that Macias had broken
the DUI court's rules by driving a vehicle without a breath interlock device
(BID) installed. The court warned Macias that he was strictly prohibited
from driving without a BID and, days later, Macias had a BID installed on
the vehicle. Shortly thereafter, the court learned that Macias's infractions
were more serious in that he had registered the BID-less vehicle without
notifying the court and had had continuous access to it for several months.
The DUI court questioned Macias about these more serious
rule violations at a routine status check and terminated him from DUI
court for violating the program rules. Through previously appointed
counsel, Macias filed motions in the DUI court seeking reconsideration
and an evidentiary hearing. He maintained that he had a due process
right to a hearing with the assistance of counsel before being terminated
from DUI court. The DUI court denied Macias's motion for an evidentiary
hearing on the grounds that the status check satisfied Macias's due
process rights even though counsel was not present. It granted the motion
for reconsideration, however, and allowed Macias to argue, through
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counsel, the merits of his termination from DUI court. After hearing these
arguments, the court reaffirmed the termination and remanded the cases
to their district courts of origin.
It is unclear what transpired after the remands because
Macias does not provide a complete record. Lopez v. State, 105 Nev. 68,
85, 769 P.2d 1276, 1287 (1989) ("Failure to provide an adequate record on
appeal handicaps appellate review."). But, from the limited record, it
appears that Macias appeared with counsel for sentencing before each
district court, and that each district court reviewed his case before
sentencing him to a term of imprisonment to run concurrent with the
sentences from the other departments. Macias appealed all three
judgments to this court.
Macias argues that he was entitled to due process, including
notice and a hearing with the assistance of counsel, in the DUI court
before it terminated him from its treatment program and remanded him to
the originating courts. Although Macias raises an important issue, we do
not address his argument because we resolve his appeals on a threshold
statutory issue. See Spears v. Spears, 95 Nev. 416, 418, 596 P.2d 210, 212
(1979) ("This court will not consider constitutional issues which are not
necessary to the determination of an appear); see also State of Nev. v.
Plunkett, 62 Nev. 258, 270-71, 149 P.2d 101, 104 (1944) ("[A] constitutional
question will not be determined unless clearly involved, and a decision
thereon is necessary to a determination of the case.").
This court reviews questions of statutory interpretation de
novo. State v. Lucero, 127 Nev. , 249 P.3d 1226, 1228 (2011).
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Because "[t]he words of a governing text are of paramount concern,"
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 56 (2012), "this court will not look beyond the express
language unless it is clear that the plain meaning was not intended."
Hernandez v. Bennett-Haron, 128 Nev. „ 287 P.3d 305, 315 (2012).
NRS 484C.340(4) provides that once a district court decides to
grant an application for treatment,
the court shall:
(a) Immediately, without entering a
judgment of conviction and with the consent of the
offender, suspend further proceedings and place
the offender on probation for not more than 5 years
upon the condition that the offender be accepted
for treatment by a treatment facility, that the
offender complete the treatment satisfactorily and
that the offender comply with any other condition
ordered by the court.
(Emphases added.). In NRS 484C.340(4), the word 'shall' is mandatory
and does not denote judicial discretion." Johanson v. Eighth Judicial Dist.
Court, 124 Nev. 245, 249-50, 182 P.3d 94, 97 (2008); see also NRS
0.025(1)(d) ("Shall imposes a duty to act."). As an auxiliary verb, "shall"
modifies the meaning of the main verbs, "suspend" and "place." William
A. Sabin, The Gregg Reference Manual, 645 Appendix D (10th ed. 2005)
(defining an auxiliary verb as "[a] verb that helps in the formation of
another verb"). See also Scalia & Garner, supra, 140 ("Words are to be
given the meaning that proper grammar and usage would assign them.").
So, NRS 484C.340(4) plainly states that district courts shall place
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offenders on probation before an offender begins a treatment program 3
See Stromberg v. Second Judicial Dist. Court, 125 Nev. 1, 3 n.2, 200 P.3d
509, 510 n.2 (2009) ("If the district court grants the application for
treatment, it must suspend the proceedings and place the offender on
probation"); Savage, 125 Nev. at 19, 200 P.3d at 83-84.
Here, the district courts properly suspended the proceedings
after accepting Macias's plea agreements but, for reasons unknown, they
did not place Macias on probation. The district courts thus gave NRS
484C.340 an erroneous construction that did not give meaning to all of the
parts of the statute. Butler v. State, 120 Nev. 879, 893, 102 P.3d 71, 81
(2004) ("[E]very word, phrase, and provision of a statute is presumed to
have meaning."); Employers Ins. Co. of Nev. v. Chandler, 117 Nev. 421,
425-26, 23 P.3d 255, 258 (2001) ("[C]ourts must construe statutes to give
meaning to all of their parts and language."). Because of the district
courts' failure to follow the statute and place Macias on probation, Macias
did not receive the notice, preliminary inquiry, and formal revocation
hearing, and other protections to which probationers are entitled in
district court. Anaya v. State, 96 Nev. 119, 122, 606 P.2d 156, 157-58
(1980) (discussing Morrissey v. Brewer, 408 U.S. 471 (1972)); NRS 176.216-
218. The only remedy at this point is to reverse and remand to the district
courts of origin to follow NRS 484C.340(4) and, if appropriate, place
Macias on probation or conduct such other and further proceedings as may
be appropriate.
For these reasons, we
3 Maciasconcedes that the district courts should have placed him on
probation pursuant to NRS 484C.340.
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ORDER the judgments of the district courts REVERSED AND
REMAND these matters to the district courts for proceedings consistent
with this order.
Gibbons
(rig/LA.42
Pickering
J.
J.
Hardesty
'EL J.
ParraguirreC‘S/5 4S
( J.
Douglas
J.
Cherry
ditta
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cc: Hon. Abbi Silver, District Judge
Hon. Michael Villani, District Judge
Hon. Kenneth Cory, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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