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 2014-05

Beard (Jesse) v. State ( 2014 )


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  •                 motion. The district court found that counsel was not "far off to have told
Mr. Beard . . . it would be likely that, assuming the State was seeking
large habitual that I likely would sentence [him] as a large habitual . . .
and would likely result in a life sentence as opposed to the 8 to 20 that
was being offered." The district court also found that Beard understood
the plea offer and the sentencing consequences and entered his guilty plea
knowingly and voluntarily. Our review of the record reveals that Beard
failed to either provide a substantial, fair, and just reason which required
the withdrawal of his plea, see Crawford, 117 Nev. at 721, 30 P.3d at 1125,
or demonstrate that counsel's performance was deficient, see Strickland v.
Washington,
    466 U.S. 668
    , 687-88 (1984); see also Missouri v. Frye, 566
U.S. „
    132 S. Ct. 1399
    , 1405-06 (2012); Lafter v. Cooper, 566 U.S.
,
    132 S. Ct. 1376
    , 1384 (2012). Therefore, because Beard failed to
satisfy his burden and prove that his plea was invalid, see Molina v. State,
    120 Nev. 185
    , 190,
    87 P.3d 533
    , 537 (2004), we conclude that the district
court did not abuse its discretion by denying his motion, Johnson v. State,
    123 Nev. 139
    , 144,
    159 P.3d 1096
    , 1098 (2007).
Second, Beard contends that the district court abused its
discretion by imposing a sentence constituting cruel and unusual
punishment. We disagree.
This court will not disturb a district court's sentencing
determination absent an abuse of discretion.     Parrish v. State,
    116 Nev. 982
    , 989,
    12 P.3d 953
    , 957 (2000). Beard has not alleged that the district
court relied solely on impalpable or highly suspect evidence or that the
sentencing statutes are unconstitutional.   See Chavez v. State,
    125 Nev. 328
    , 348,
    213 P.3d 476
    , 489-90 (2009). Beard's prison term of 8-20 years
falls within the parameters provided by the relevant statute, see NRS
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207.010(1)(a), and is not so unreasonably disproportionate to the gravity of
the offense and his history of recidivism as to shock the conscience,
CuIverson v. State,
    95 Nev. 433
    , 435,
    596 P.2d 220
    , 221-22(1979); see also
Ewing v. California,
    538 U.S. 11
    , 29 (2003) (plurality opinion); Harmelin v.
Michigan,
    501 U.S. 957
    , 1000-01 (1991) (plurality opinion). We conclude
that the district court did not abuse its discretion at sentencing, and we
ORDER the judgment of conviction AFFIRMED.
J.
J.
cc:   Hon. Elissa F. Cadish, District Judge
Law Offices of Martin Hart, LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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