Evans (Edward) v. State ( 2015 )

 criminal history remained unchanged. Normally, this court remands for
resentencing before the same district judge. Weaver v. Warden, 107 Nev.
856, 859, 822 P.2d 112, 114 (1991). Accordingly, we conclude that the
district court did not err in denying the motion to recuse Judge
Steinheimer,
Second, Evans argues that the district court abused its
discretion and relied on "suspect evidence" in adjudicating him as a
habitual criminal. Evans implies that he may have been penalized for
exercising his right to a trial but fails to identify a basis for relief and that
the district court failed to consider his mitigation evidence. We afford the
district court the broadest kind of judicial discretion in adjudicating
habitual-criminal status. LaChance v. State, 130 Nev., Adv. Op. 29, 321
P.3d 919, 929 (2014). We note that the district court discussed Evans'
mitigation evidence, weighed this against other sentencing criteria, and
previously noted that Evans' exercise of his right to a trial played no role
in her analysis. We further note that Evans has not cogently identified
how the district court's consideration was deficient. In light of the
qualifying number of felony convictions discussed on the record, we
conclude that the district court did not rely on suspect evidence and acted
within its discretion in adjudicating Evans as a habitual criminal. See
NRS 207.010.
Third, Evans argues that his sentence as a habitual criminal
should be stricken because the triggering facts were not determined by a
jury as required by Apprendi v. New Jersey, 530 U.S. 466 (2000). This
court has held that Nevada's habitual criminal statute conforms to
Apprendi. O'Neill v. State, 123 Nev. 9, 17, 153 P.3d 38, 43 (2007). Evans
overlooks that Apprendi does not require jury determinations for finding
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the fact of a prior conviction to increase the penalty for a crime. 530 U.S.
at 490. Evans offers no persuasive argument in support of his contention
that O'Neill should be overruled. See Tilcock v. Budge, 538 F.3d 1138,
1145 (9th Cir. 2008) (concluding that Nevada's habitual criminal statute
does not violate Apprendi).
Lastly, Evans argues that it was cruel and unusual to
sentence him to a term of life with the possibility of parole after ten years
under the small habitual criminal statute when the maximum possible
term would have been nine years absent habitual adjudication. A
sentence that is within the statutory limits is not "cruel and unusual
punishment unless the statute fixing punishment is unconstitutional or
the sentence is so unreasonably disproportionate to the offense as to shock
the conscience." Blume v. State, 112 Nev. 472, 475, 915 P.2d 282, 284
(1996) (quoting CuIverson v. State, 95 Nev. 433, 435, 596 P.2d 220, 221-22
(1979)); see also Harmelin v. Michigan, 501 U.S. 957, 1000-01 (1991)
(plurality opinion) (explaining that the Eighth Amendment does not
require strict proportionality between crime and sentence; it forbids only
an extreme sentence that is grossly disproportionate to the crime). The
district court imposed a sentence that accorded with the statutory limits
for the offenses and habitual criminal status. NRS 195.030; NRS 199.280;
NRS 205.060(1); NRS 207.010(1)(b). In light of the large number of Evans'
prior felony convictions, we conclude that the sentence imposed is not so
grossly disproportionate to the crimes and Evans' history of recidivism as
to constitute cruel or unusual punishment. See Ewing v. California, 538
U.S. 11, 29 (2003) (plurality opinion); Sims v. State, 107 Nev. 438, 814
P.2d 63 (1991) (affirming a sentence of life without parole for grand
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larceny involving the theft of a purse and wallet containing $476,
adjudicated under the habitual criminal statute).
Having considered Evans' contentions and concluded that they
are without merit, we
ORDER the judgment of conviction AFFIRMED.
, C.J.
Hardesty
J.
Parraguirre
J.
Douglas
cc: Hon. Connie J. Steinheimer, District Judge
Karla K. Butko
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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