Blankenship v. State ( 2016 )

132 Nev., Advance Opinion 50
IN THE SUPREME COURT OF THE STATE OF NEVADA
LERON TERRELL BLANKENSHIP, No. 66118
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
FERNANDO BRIONES, No. 66944
Appellant,
vs. FILED
THE STATE OF NEVADA,
Respondent. JUL 2 1 2016
1E K. LI ND EMAN
ES-UP394E-601J R
CL
Appeals from separate district court judgments of conviction,
pursuant to guilty pleas, in Docket No. 66118, of destroying or injuring
real or personal property of another, Second Judicial District Court,
Washoe County; Patrick Flanagan, Judge; and in Docket No. 66944 of
burglary, Second Judicial District Court, Washoe County; Elliott A.
Sattler, Judge.
Conviction affirmed, sentence vacated, and remanded with
instructions (Docket No. 66118); conviction affirmed (Docket No. 66944).
Jeremy T. Bosler, Public Defender, John Reese Petty, Chief Deputy Public
Defender, and Evelyn A. Grosenick, Deputy Public Defender, Washoe
County,
for Appellants Leron Terrell Blankenship and Fernando Briones.
Adam Paul Laxalt, Attorney General, Carson City; Christopher J. Hicks,
District Attorney, and Terrence P. McCarthy, Chief Deputy District
Attorney, Washoe County,
for Respondents.
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BEFORE THE COURT EN BANC.
OPINION
By the Court, HARDESTY, J.:
The Division of Parole and Probation (the Division) makes
sentencing recommendations to district courts in a Presentence
Investigation Report (PSI). In making its sentencing recommendations,
the Division uses a Probation Success Probability (PSP) form that scores
35 factors. The total score places the defendant within a range of
sentences on a Sentence Recommendation Selection Scale (Sentencing
Scale) and provides the basis for the sentence recommendation in the PSI.
In these appeals, we consider whether scoring errors in the defendants'
PSPs amounted to impalpable or highly suspect evidence that caused
improper placement of these defendants in the Sentencing Scales and
adversely influenced the Division's sentencing recommendations in the
PS's.'
In Docket No. 66118, we conclude that the PSP failed to
properly account for the defendant's mental disabilities in scoring his
ability to be employed, and, as a result, the PSI recommendation was in
error. Furthermore, the defendant's sentence was prejudiced because the
district court did not correct the errors in the PSP prior to sentencing and
implicitly relied upon them. Thus, we conclude the district court abused
its sentencing discretion by relying on impalpable and highly suspect
evidence, and we remand for a new sentencing hearing.
'Given the overlapping issues, we consolidate these appeals for
disposition. See NRAP 3(b).
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In Docket No. 66944, we conclude that it was not error for the
PSI sentencing recommendation to deviate above the Sentencing Scale
calculation because the Division had a rational basis to make an upward
adjustment to the recommended sentence. Additionally, the defendant's
sentence was not prejudiced by potential errors because the district court
expressly disclaimed reliance on the PSI recommendation, reaching an
independent sentencing decision.
FACTS AND PROCEDURAL HISTORY
Factual and procedural history regarding Docket No. 66118
Appellant Leron Blankenship and his wife rented an
apartment in Sparks, Nevada, in a complex owned by Douglas Carling.
Following a dispute between Blankenship and Carling, Blankenship
moved out of the apartment without informing Carling. Carling inspected
the apartment the next day and discovered damages to the interior of the
apartment totaling approximately $7,600.
Carling filed a police report with the Sparks Police
Department. Blankenship was arrested and charged with a felony—
destroying or injuring real or personal property of another amounting to
$5,000 or more pursuant to NRS 193.155 and NRS 206.310.
Blankenship pleaded guilty, and the State agreed to concur in
the Division's sentencing recommendation. In calculating Blankenship's
PSP score to determine his placement on the Sentencing Scale, the
Division found Blankenship unemployable with no employment history.
As a result, Blankenship's overall PSP score was 60, 6 points lower than a
continuously employed individual. If he had received the additional six
points, he would have been placed in the probation recommendation range
on the Sentencing Scale Instead, a score of 60 placed him in the
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borderline range between prison and probation, and the Division
recommended a sentence of 12-32 months in prison in the PSI.
At sentencing, Blankenship objected to the PSP conclusion
that he was unemployable with a nonexistent employment history.
Blankenship informed the district court that he had been diagnosed with
bipolar disorder and paranoid schizophrenia and that he has been
receiving Social Security disability due to these mental health conditions
since 2003. He argued that the PSP and Sentencing Scale produced
impalpable or highly suspect evidence by failing to take into account his
mental disabilities and improperly characterized him as unemployed
resulting in a recommendation for prison instead of probation.
The district court did not resolve Blankenship's objections to
the PSP or PSI prior to sentencing him. The district court followed the
PSI, sentencing Blankenship to prison for a term of 12-32 months and
ordering him to pay $3,150 in restitution.
Factual and procedural history regarding Docket No. 66944
Appellant Fernando Briones served a five-year prison term in
Susanville, California. Upon being released, he was transported to
downtown Reno, Nevada, left with $200 and thereafter resumed drug and
alcohol use. After being in Reno for 26 days, he used a rock to break a car
window, stole approximately $2 in change, and was later arrested on
burglary charges. Prior to this arrest, he had been convicted 11 times,
imprisoned 6 times, had probation granted and revoked 1 time, and had
each of his 10 parole opportunities revoked.
Briones pleaded guilty to the charges, and the State reserved
the right to argue for an appropriate sentence. The overall PSP score
placed Briones in a category on the Sentencing Scale that recommended
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prison. His raw score was calculated to be 21, which led to a Sentencing
Scale calculation of 16-72 months. However, the Division recommended in
the PSI that Briones be incarcerated for 48-120 months.
At the sentencing hearing, Briones requested probation or a
prison term of 12-30 months. Briones objected to the PSI recommendation
because he believed the discrepancy between the Sentencing Scale
calculation and the PSI recommendation was due to the Division
unlawfully considering subjective criteria. Briones' attorney stated that
the PSI author had indicated in a prior discussion that "there were no
specific guidelines for" the Division to follow when making a
recommendation.
The district court addressed these objections on the record but
found that Briones' extensive criminal history warranted a sentence of 48-
120 months in prison. Although the sentence is the same as that
recommended in the PSI, the district court expressly noted that it was not
bound by the PSI's recommendation and the sentence was "based on [the
district court's] independent determination that [48-120 months] is the
appropriate sentence."
DISCUSSION
On appeal, Blankenship argues that the Division's PSI
recommendation2 relied on calculations within the PSP, which constituted
2 The State argues that Blankenship waived his arguments as to the
validity of the PSI because he never moved to strike the PSI in district
court. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981,
983 (1981) ("A point not urged in the trial court, unless it goes to the
jurisdiction of that court, is deemed to have been waived and will not be
considered on appeal."). However, Blankenship did object to the PSP in
district court, and we thus conclude that the issue has been preserved for
appeal.
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impalpable and highly suspect evidence. As a part of this argument, he
contends that the PSP failed to score his mental disabilities and
unlawfully penalized him for being unemployed without an employment
history. Briones argues that his PSI constituted impalpable or highly
suspect evidence because the Division subjectively increased its PSI
recommendation beyond the Sentencing Scale calculation. 3
To resolve these appeals, we first generally examine the
statutory scheme pertaining to sentencing recommendations and look at
the forms the Division generates to assist in formulating its sentencing
recommendations—the PSP and the Sentencing Scales. We then consider
whether the information in the PSPs and PSIs in these appeals amounted
to impalpable or highly suspect evidence and whether the district courts
abused their discretion in sentencing Blankenship and Briones by relying
on the impalpable or highly suspect evidence.
The statutory scheme regarding the Division's sentencing recommendations
Pursuant to NRS 176.135(1), the Division must "prepare a PSI
to be used at sentencing for any defendant who pleads guilty to or is found
guilty of a felony." Stockmeier v. State, Bd. of Parole Comm'rs, 127 Nev.
243, 248, 255 P.3d 209, 212 (2011). "A PSI contains information about the
defendant's prior criminal record, the circumstances affecting the
3 Briones also contends that the district court's sentence was
arbitrary and capricious because the district court focused on the potential
that Briones could qualify as a habitual criminal. While the district court
did state that Briones would qualify as a habitual criminal, the district
court did not adjudicate Briones a habitual criminal. Instead, the district
court was simply commenting on Briones' extensive criminal history. This
consideration is clearly within the district court's discretion. Parrish v.
State, 116 Nev. 982, 988,12 P.3d 953, 957 (2000) ("[Ilhe district court is
afforded wide discretion when sentencing a defendant.").
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defendant's behavior and the offense, and the impact of the offense on the
victim." Id. at 248, 255 P.3d at 212-13. Additionally, a PSI must contain
"[a] recommendation of a minimum term and a maximum term of
imprisonment or other term of imprisonment authorized by statute, or a
fine, or both." NRS 176.145(1)(g). The PSI may also include "any
additional information that [the Division] believes may be helpful in
imposing a sentence, in granting probation or in correctional treatment."
NRS 176.145(2).
When considering whether to recommend probation or prison,
NRS 213.10988(1) obligates the Chief Parole and Probation Officer to
adopt "standards to assist him or her in formulating a
recommendation. . . . The standards must be based upon objective criteria
for determining the person's probability of success on parole or probation."
Pursuant to NRS 213.10988(1)'s grant of regulatory authority, the
Division adopted NAC 213.590, creating 27 objective factors that should be
considered when preparing a PSP.
NRS 213.10988(2) permits the Division Chief to "first consider
all factors which are relevant in determining the probability that a
convicted person will live and remain at liberty without violating the law."
Furthermore, NRS 213.10988(3) requires the Division Chief to "adjust the
standards to provide a recommendation of greater punishment for a
convicted person who has a history of repetitive criminal conduct or who
commits a serious crime."
The sentencing forms
PSPs are separated into four broad categories—prior criminal
history, present offenses, social history, and community impact. These
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four categories include a total of 35 independent considerations, 4 which
are based upon NAC 213.590's 27 objective factors. 5 Notably, none of the
35 considerations or the 27 factors take into account a defendant's mental
disabilities. The 35 considerations are independently scored in the PSP,
using a separate form to guide the Division when assigning points (the
Scoring Sheet). The points assigned to the 35 considerations are then
added to arrive at an overall PSP score. Overall scores below 55 result in
an automatic recommendation of prison, scores ranging between 55 and 64
are considered borderline, and scores above 64 allow for a recommendation
of probation. When an overall PSP score warrants a recommendation of
prison or when the Division decides to recommend prison for a borderline
candidate, a raw score is computed consisting of the scores from the
considerations in the prior criminal history and the present offense
categories. The raw score is translated into a sentencing range using the
Sentencing Scale. NAC 213.600.
4 The prior criminal history category has ten considerations: felony
convictions, misdemeanor convictions, pending unrelated cases,
subsequent criminal history, prior incarcerations, juvenile commitments,
number of years free of conviction, prior formal supervision, and criminal
patterns. The present offense category has ten considerations:
circumstances of arrest, type of offense, psychological or medical impact on
victim, weapon, controlled substances, sophistication/premeditation, plea
bargain benefits, financial impact, co-offender, and motive. The social
history category has seven considerations: age, employment/program,
financial, employability, family situation, education, and military. The
community impact category has eight considerations: commitment/ties,
program participation, honesty/cooperation, attitude/supervision, resource
availability, substance drug, substance alcohol, and attitude/offense.
5 NAC 213.590 and its companion, NAC 213.600, are currently under
review and may be deleted from the Nevada Administrative Code.
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"[Al defendant [has] the right to object to factual [or
methodological] errors in [sentencing forms], so long as he or she objects
before sentencing, and allows the district court to strike information that
is based on 'impalpable or highly suspect evidence." Sasser v. State, 130
Nev., Adv. Op. 41, 324 P.3d 1221, 1226 (2014) (quoting Stockmeier, 127
Nev. at 248, 255 P.3d at 213 (internal quotations omitted)). "[lit is clear
that 'any objections [that the defendant has] must be resolved prior to
sentencing." Id. at 1223 (alteration in original) (quoting Stockmeier, 127
Nev. at 250, 255 P.3d at 214).
In Goodson v. State, the defendant objected to a "disputed
portion" of the PSI used by the district court at sentencing. 98 Nev. 493,
495, 654 P.2d 1006, 1007 (1982). "This court recognize[d] the discretion
vested in the district court with regard to imposing sentence[s] on the
criminals before it." Id. However, we concluded that "an abuse of
discretion will be found when the defendant's sentence is prejudiced from
consideration of information or accusations founded on impalpable or
highly suspect evidence." Id. at 495-96, 654 P.2d at 1007; see also Silks v.
State, 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976) ("So long as the record
does not demonstrate prejudice resulting from consideration of
information or accusations founded on facts supported only by impalpable
or highly suspect evidence, this court will refrain from interfering with the
sentence imposed.").
Accordingly, to decide whether any errors in Blankenship's
and Briones' sentencing forms provide a basis for new sentencing
hearings, we must determine (1) whether those errors constituted
impalpable or highly suspect evidence, and (2) if so, whether prejudice
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resulted from the district court's consideration of information founded
upon such evidence.
Blankenship's sentencing forms
Blankenship argues that the PSP and PSI penalized him for
having bipolar disorder and paranoid schizophrenia, which prevented him
from working, because he was characterized as unemployed with a
nonexistent work history. NRS 176.145(1)(b) states that a PSI "must
contain. . . [finformation concerning. . . the circumstances affecting the
defendant's behavior." NRS 213.10988(2) provides that when creating
standards for sentencing forms, the Division Chief must "first consider all
factors which are relevant in determining the probability that a convicted
person" will violate the law if granted probation.
Undoubtedly, a mental disability affects a defendant's
behavior and is relevant when weighing recidivism probability. See, e.g.,
People v. Watters, 595 N.E.2d 1369, 1379 (Ill App. Ct. 1992) (recognizing
that a disability is a significant mitigating factor in sentencing).
Therefore, we conclude that sentencing forms must, at a minimum,
include considerations for legitimate mental disabilities and the current
PSP categories should not penalize a defendant as a result of a disability.
Because neither NAC 213.590's 27 factors nor the PSP's 35
considerations take into account a defendant's mental disabilities,
Blankenship's disabilities were not mitigating factors considered by the
Division when it formulated the Sentencing Scale calculation. While the
PSI does summarize Blankenship's mental health history, the PSP and
Sentencing Scale scoring mechanisms failed to address his disabilities.
Thus, this factual reference had no effect on the Division's sentencing
recommendation in the PSI. Rather, the record reflects that
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Blankenship's disabilities actually worked against him. The Scoring
Sheet demonstrates that Blankenship was penalized six points in the PSP
for being unemployable with a nonexistent work history.
A simple error in a PSP does not constitute impalpable or
highly suspect evidence. Rather, the error must be such that it taints the
PSI sentencing recommendation considered by the district court. 6 For
example, a scoring error in a PSP or Sentencing Scale can taint the PSrs
recommendation because the Division's overall recommendation could
change from probation to borderline or from borderline to prison; or, just
as harmful, the wrong sentencing range could be identified on the
Sentencing Scale, causing the Division to recommend a more severe
sentence than was justified.
Here, had Blankenship not been penalized six points, he
would have scored high enough on the Sentencing Scale to justify a
recommendation for probation Instead, Blankenship was placed in the
borderline category, and the Division recommended prison. Accordingly,
we conclude that Blankenship's PSI recommendation was tainted as a
result of the error, and, therefore, the sentencing forms constituted
impalpable or highly suspect evidence.?
6 We stress the importance of accurate PSI sentencing
recommendations for a number of reasons, including, as in Blankenship's
case, the fact that the State may stipulate in a plea agreement to concur
with the PSI recommendation, and that same PSI recommendation may
later be considered by the Pardons Board.
?Blankenship also argues that the PSP subjectively characterized
his family situation as being disruptive, and the PSI subjectively
characterized his interview with the Division as hostile. We initially note
that the Division's consideration of these two factors falls within NAC
213.590(1)(r) and (z). Furthermore, Blankenship failed to call the Division
continued on next page...
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Blankenship's attorney objected to the PSP prior to and during
the sentencing hearing because it did not account for his disabilities. The
district court did not rule on his objection; rather, the court discussed
other justifications for the sentence and then sentenced Blankenship to a
term of incarceration consistent with the PSI recommendation. Because
we conclude that the sentencing forms constituted impalpable or highly
suspect evidence and because the district court failed to rule on the
objection, we further conclude the district court abused its discretion when
it considered information in the PSI based on that impalpable or highly
suspect evidence. Goodson, 98 Nev. at 495-96, 654 P.2d at 1007. As such,
Blankenship's sentence was prejudiced. We therefore vacate his sentence
and remand for resentencing.
Briones' sentencing forms
Briones argues that the Division's PSI recommendation was
unlawfully elevated beyond the Sentencing Scale calculation. We
disagree.
NRS 176.145(1)(g) provides that a PSI must contain a
recommended sentencing range but in no way limits the recommendation
to what is provided for in a PSP or Sentencing Scale. Additionally, NRS
176.145(2) allows the Division to account for "any additional information
...continued
employee who created the forms as a witness in the district court
proceedings. Had this witness been called, he or she likely would have
provided objective facts to sufficiently support the forms'
characterizations. See Objective, Black's Law Dictionary (10th ed. 2014)
(defining "objective" as "based on externally verifiable phenomena, as
opposed to an individual's perceptions, feelings, or intentions"). Thus, we
conclude that this argument is without merit.
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that it believes may be helpful" when reaching a sentencing
recommendation. And, NRS 213.10988(3) expressly permits the Division
to recommend greater punishment based on repetitive criminal conduct by
the defendant. Accordingly, we conclude that the statutes afford the
Division some discretion to deviate from the Sentencing Scale calculations
in making a sentencing recommendation in the PSI, so long as a rational
basis for doing so is sufficiently articulated.
On the bottom of Briones' Sentencing Scale form, the Division
indicated that its sentencing recommendation deviated from the
Sentencing Scale based on Briones' prior offenses. We conclude that this
was a rational basis to deviate from and that Briones' sentencing forms
did not constitute impalpable or highly suspect evidence. As a result, we
cannot say that Briones' sentence was prejudiced because the district
court did not rely on impalpable or highly suspect evidence, and, in fact,
the court expressly disclaimed reliance on the PSI sentencing
recommendation in reaching its "independent [sentencing] determination."
CONCLUSION
Based on the foregoing, we confirm Blankenship's judgment of
conviction but vacate his sentence and remand his case for a new
sentencing hearing. We instruct the district court that, prior to
conducting a new sentencing hearing, the PSP, Sentencing Scale, and PSI
must be amended to account for and score Blankenship's mental
disabilities and their impact on his employability. However, because the
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district court in Briones' case did not abuse its sentencing discretion, we
affirm his judgment of conviction.
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We concur:
Cl Aft a '56 , CJ
Parraguirre
J.
J.
Gibbons
, J.
Pickering
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