Ramsundar (Leo) v. State ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
LEO ERICK RAMSUNDAR, No. 82458
Appellant,
vs.
THE STATE OF NEVADA,
Respondent. FILE
ORDER OF REVERSAL AND REMAND
This is a pro se appeal from a district court order denying a
postconviction petition for a writ of habeas corpus. Eighth Judicial District
Court, Clark County; Carli Lynn Kierny. Appellant Leo Erick Ramsundar
argues that the district court erred in denying the petition as procedurally
barred. We reverse and remand.'
In his petition, Ramsundar claimed that he was entitled to
credit for time served for presentence incarceration during the period of
January 30, 2018, through January 7, 2020. He claimed that his appellate
counsel was ineffective in this regard. The district court denied the petition
as procedurally barred by NRS 34.810(1)(a).
"We have considered the pro se brief filed by appellant and given
respondent an opportunity to file a response. NRAP 46A(c). Respondent
has not filed an answering brief or otherwise responded to this court's order.
We conclude that oral argument is not warranted. NRAP 34(f)(3). This
appeal therefore has been decided based on the pro se brief and the record.
Id.
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A claiin kr additional presentence credits is a claim challenging
the validity of the judgment of conviction and sentence that must be raised
on direct appeal or in a postconviction petition for a writ of habeas corpus
in compliance with NRS Chapter 34. Griffin v. State, 122 Nev. 737, 744,
137 P.3d 1165, 1169 (2006). A petitioner who has pleaded guilty may argue
that his counsel was ineffective for failing to seek or challenge the amount
of presentence credits. See id. at 740, 746, 137 P.3d at 1167, 1170-71 (noting
that petitioner had pleaded guilty and concluding that petitioner may seek
presentence credit through a postconviction habeas action).
Ramsundar timely filed the petition here. See NRS 34.726(1).
The district court erred in concluding that NRS 34.810(1)(a) barred
Ramsundar's ineffective-counsel claim for presentence credit. See Gonzales
v. State, 137 Nev., Adv. Op. 40, 492 P.3d 556, 562 (2021) (recognizing that
a defendant who has pleaded guilty may assert that counsel provided
ineffective assistance at sentencing). Further, the district court clearly
erred in finding that Ramsundar's petition was bare; Ramsundar
specifically alleged the claim and the dates for which he sought credit for
time served. See Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166
(2005) (reviewing district court factual findings for support by substantial
evidence and clear error). The record shows that Ramsundar received
presentence credit in another case for a portion of the period for which he
seeks credit and to which this sentence is consecutive, but that does not
account for the entire time that he was in presentence incarceration. NRS
176.055(1) (providing that a defendant is entitled to credit for time actually
spent in confinement before conviction). The district court should have
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determined whether Ramsundar was entitled to additional presentence
credit. Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.2
P rraguirre
, J. Sr.J.
Cadish
cc: Hon. Carli Lynn Kierny, District Judge
Leo Erick Ramsundar
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
2 The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
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