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 2013-09

Hodges (Steven) v. State ( 2013 )


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  •                             Second, Hodges contends that the district court abused its
discretion by adjudicating him as a habitual criminal and imposing a
disproportionate sentence which shocks the conscience. We disagree.
The district court has broad discretion to dismiss a count of
habitual criminality. See NRS 207.010(2); O'Neill v. State,
    123 Nev. 9
    , 12,
    153 P.3d 38
    , 40 (2007). Our review of the record reveals that the district
court understood its sentencing authority and considered the appropriate
factors prior to making its determination to adjudicate Hodges as a
habitual criminal. See Hughes v. State,
    116 Nev. 327
    , 333,
    996 P.2d 890
    ,
893 (2000); see also NRS 207.016(5); O'Neill, 123 Nev. at 15-16,
    153 P.3d at 42-43
     (once a district court declines to exercise its discretion to dismiss
an allegation of habitual criminality, the only factual findings the judge
may then make must relate solely to the existence and validity of the prior
convictions). We conclude that the district court did not abuse its
discretion by adjudicating Hodges as a habitual criminal.
Additionally, Hodges has not alleged that the district court
relied solely on impalpable or highly suspect evidence or demonstrated
that the sentencing statute is unconstitutional.    See Chavez v. State,
    125 Nev. 328
    , 348,
    213 P.3d 476
    , 489-90 (2009). Hodges' prison term of 10-25
years falls within the parameters provided by the relevant statute, see
NRS 207.010(1)(b)(3), and is not so unreasonably disproportionate to the
gravity of the offense and his history of recidivism as to shock the
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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. Parrish v. State,
    116 Nev. 982
    , 989,
    12 P.3d 953
    , 957 (2000).
Accordingly, we
ORDER the judgment of conviction AFFIRMED.
Gibbons
J.
Douglas
cc:   Hon. Elliott Sattler, District Judge
Janet S. Bessemer
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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