McNeill v. State , 2016 NV 54 ( 2016 )

132 Nev., Advance Opinion54
IN THE SUPREME COURT OF THE STATE OF NEVADA
STEVE DELL MCNEILL, No. 66697
Appellant,
vs. FILED
THE STATE OF NEVADA,
Respondent. JUL 2 8 2016
TRACIE K. LINDEMAN
E COURT
BY
HIEF DEP7011-4.
Appeal from a judgment of conviction, pursuaniito a jury
verdict, of violation of conditions of lifetime supervision. Eighth Judicial
District Court, Clark County; Kathleen E. Delaney, Judge.
Reversed and remanded.
Philip J. Kohn, Public Defender, and Howard Brooks and Sharon G.
Dickinson, Deputy Public Defenders, Clark County,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, Steven S. Owens, Chief Deputy District Attorney, and
Jonathan J. Cooper, Deputy District Attorney, Clark County,
for Respondent.
BEFORE THE COURT EN BANC.
OPINION
By the Court, DOUGLAS, J.:
In this appeal, we consider whether the State Board of Parole
Commissioners may impose conditions not enumerated in NRS 213.1243
on a sex offender subject to lifetime supervision. We conclude that the
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plain language of NRS 213.1243 does not grant the Board authority to
impose additional conditions. We further conclude that this omission was
intentional because the Legislature may not delegate its power to
legislate. We therefore reverse the district court's judgment of conviction
based on violations of conditions of lifetime supervision not enumerated in
NRS 213.1243.
BACKGROUND
Appellant Steve McNeill is a convicted sex offender on lifetime
supervision. According to McNeill's lifetime supervision agreement, he
was required to pay certain fees, submit to a urinalysis, meet a curfew,
and maintain full-time employment, among other things.
After five years of lifetime supervision, McNeill was
reassigned to Ashley Mangan, a parole and probation officer in the sex
offender unit. McNeill reported to Mangan at the Division of Parole and
Probation for the first time in March 2013. Mangan established a curfew
for McNeill, requiring that he be present near the intersection of two
specified streets referred to as his "residence" between 5 p.m. and 5 a.m.'
According to Mangan, she was unable to locate McNeill at his
residence when she went to visit McNeill to confirm that he was in
compliance with his curfew. Thus, when McNeill reported to Mangan in
April, Mangan requested that McNeill draw a map of where he was
sleeping. McNeill complied and requested an extended curfew. Mangan
established a later curfew, requiring that McNeill be at his residence by 8
'McNeill was homeless. Thus, the intersection of two streets was
established as his "residence."
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p.m. rather than 5 p.m. McNeill also revealed that he had not been
attending counseling. Mangan requested that he reenroll.
When McNeill reported in May, he provided different cross
streets for his residence and drew Mangan a more detailed map of where
he was sleeping.
Mangan did not meet with McNeill in June because McNeill
was assigned to another officer for supervision. However, McNeill was
assigned to Mangan again in July. According to Mangan, when she
contacted McNeill to inform him that she would be supervising him again,
he hung up on her.
When McNeill went to meet with Mangan later in July,
Mangan arrested McNeill for noncompliance. According to Mangan,
McNeill failed to attend counseling, make curfew, pay fees, and maintain
employment. The State declined to proceed with charges.
In August, upon McNeill's arrival, Mangan requested that he
submit to a urinalysis. McNeill refused. Mangan then took McNeill to
meet with her supervisor, who was unable to persuade McNeill to comply.
McNeill affirmed that he would not submit to urinalyses, had no plans to
abide by a curfew, and would sleep where he chose.
Thereafter, Mangan attempted to contact McNeil in person
near the identified intersection and by phone, but was unsuccessful.
McNeill did not report thereafter Instead, he sent a cease and desist
letter stating that the Division of Parole and Probation had no authority
over him and advising that it should discontinue contacting him.
The State filed a criminal complaint in March 2014, charging
McNeill with violation of conditions of lifetime supervision (count 1) and
prohibited acts by a sex offender (count 2). The State alleged that McNeill
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violated conditions of lifetime supervision by refusing to submit to a
urinalysis, failing to report, failing to obtain residence approval, failing to
cooperate with his supervising officer, failing to maintain full-time
employment, failing to abide by a curfew, and being terminated from his
sex offender counseling.
After a three-day trial, McNeill requested a directed verdict on
both charges. The district court dismissed count two, but the jury found
McNeill guilty on count one. The district court also denied McNeill's
subsequent motion for an arrest of judgment, determining that the Board
of Parole Commissioners had authority through the language of NRS
213.1243 to establish conditions of lifetime supervision not enumerated in
the statute This appeal followed.
DISCUSSION
On appeal, McNeill contends that NRS 213.1243 does not
delegate authority to the Board to impose additional lifetime supervision
conditions that are not enumerated in the statute. Thus, McNeill argues
that he did not violate NRS 213.1243, even if he violated the additional
conditions imposed by the Board. In contrast, the State argues that the
Board may establish additional conditions not specifically enumerated in
NRS 213.1243 when supervising a sex offender on lifetime supervision.
"[W]e review questions of statutory interpretation de novo."
State v. Lucero, 127 Nev. 92, 95, 249 P.3d 1226, 1228 (2011). When
interpreting statutes, we give effect to legislative intent. Id. "The starting
point for determining legislative intent is the statute's plain meaning;
when a statute is clear on its face, a court cannot go beyond the statute in
determining legislative intent." Id. (internal quotations omitted).
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We conclude that the plain language of NRS 213.1243 does not
delegate authority to the Board to impose additional conditions not
enumerated. NRS 213.1243(1) provides that "M he Board shall establish
by regulation a program of lifetime supervision of sex offenders" and that
the program must provide for supervision by officers in the Division of
Parole and Probation. The conditions of lifetime supervision are explicitly
set forth in the statute. 2 For example, NRS 213.1243(3) provides that a
sex offender's residence must be approved by a supervising officer, and a
sex offender must keep the Division aware of his or her current address.
Subsection 4 of NRS 213.1243 further provides that, as a condition of
lifetime supervision, a Tier 3 sex offender must stay 500 feet away from
certain enumerated places. There are additional residence, stay-away,
and monitoring conditions for a Tier 3 sex offender convicted of certain
sexual offenses involving a child under the age of 14 years. NRS
213.1243(5). The program of lifetime supervision must also include a no-
contact condition. NRS 213.1243(10). A violation of any condition
imposed is a Category B felony that may be "punished by imprisonment in
the state prison for a minimum term of not less than 1 year and a
maximum term of not more than 6 years, and may be further punished by
a fine of not more than $5,000." NRS 213.1243(8). What is not included in
NRS 213.1243 is any suggestion that additional conditions may be
imposed, and without an explicit grant of authority, we presume the
The Board is not required to impose the conditions set forth in
2
subsections 3, 4, and 5 of the statute if the Board finds and states in
writing that extraordinary circumstances are present. See NRS
213.1243(9).
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omission to be deliberate. Sheriff v. Andrews, 128 Nev. 544, 547-48, 286
P.3d 262, 264 (2012) (concluding that because NRS 212.093(1) does not
specifically prohibit county jail inmates from possessing cell phones, the
plain and unambiguous language did not proscribe the conduct).
Our assumption of purposeful omission is especially
appropriate in conjunction with the consideration that we do not presume
that the Legislature has done something absurd. Eller Media Co. v. City
of Reno, 118 Nev. 767, 770, 59 P.3d 437, 439 (2002) ("[S]tatutes should
always be construed so as to avoid absurd or unreasonable results.").
Without a doubt, the Legislature may not delegate its power to legislate.
Sheriff v. Luqman, 101 Nev. 149, 153, 697 P.2d 107, 110 (1985); see also
Nev. Const. art. 3, § 1; Panama Refining Co. v. Ryan, 293 U.S. 388, 421
(1935) (similarly noting that legislative power is vested in Congress). And
because a violation of a condition of lifetime supervision is a new crime,
see NRS 213.1243(8), if the statute is read to mean, as the State suggests,
that the Board may create additional conditions, then the Board would
effectively have authority to create law. Because we presume that the
Legislature is aware that it may not delegate the power to legislate
pursuant to the separation of powers, we presume that it acted in
accordance.
The State argues that the Legislature may appropriately
delegate authority to administrative agencies to facilitate the practical
execution of laws it enacts without violating the separation of powers. It
is well settled that lailthough the legislature may not delegate its power
to legislate, it may delegate the power to determine the facts or state of
things upon which the law makes its own operations depend." Luqman,
101 Nev. at 153, 697 P.2d at 110.
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Thus, the legislature can make the application or
operation of a statute complete within itself
dependent upon the existence of certain facts or
conditions, the ascertainment of which is left to
the administrative agency. Telford v. Gainesville,
65 S.E.2d 246 (Ga. 1951). In doing so the
legislature vests the agency with mere fact finding
authority and not the authority to legislate. Ex rel.
Ginocchio v. Shaughnessy, [47 Nev. 129, 217 P.
581 (1923)]. The agency is only authorized to
determine the facts which will make the statute
effective. Montoya v. O'Toole, 610 P.2d 190 (N.M.
1980); State v. King, 257 N.W.2d 693 (Minn. 1977);
People v. Uriel, 255 N.W.2d 788 (Mich. Ct. App.
1977); State v. Kellogg, 568 P.2d 514 (Idaho 1977);
see generally 1 Am Jur.2d Administrative Law, §
123 (1962), Such authority will be upheld as
constitutional so long as suitable standards are
established by the legislature for the agency's use
of its power. These standards must be sufficient to
guide the agency with respect to the purpose of the
law and the power authorized. Egan v. Sheriff, [88
Nev. 611, 503 P.2d 16(1972)]; No. Las Vegas v.
Pub. Serv. Comm'n, 83 Nev. 278, 429 P.2d 66
(1967). Sufficient legislative standards are
required in order to assure that the agency will
neither act capriciously nor arbitrarily. See United
States v. Pastor, 557 F.2d 930 (2d Cir.1977).
Id. at 153-54, 697 P.2d at 110.
The State likens the case at bar to Luqman. In Luqman, the
Clark County Sheriff's Department appealed from orders granting
pretrial habeas corpus relief to individuals detained for violating Nevada's
controlled substance act. Id. at 151, 697 P.2d at 108. One of the issues
raised was whether an amendment to the Uniform Controlled Substances
Act unconstitutionally delegated the legislative power to define the
elements of a crime to the state board of pharmacy. Id. We determined
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that the delegation of authority was not unconstitutional because the
board was merely acting as a fact-finder. Id. at 154, 697 P.2d at 110-11.
We explained that "the act retained both the general and specific
guidelines listing various factors which are to be taken into account by the
pharmacy board when scheduling drugs as well as delineating the
requirements by which a drug is classified in an appropriate schedule."
Id.
This case is distinguishable from Luqman. In enacting NRS
213.1234, the Legislature did not explicitly provide the Board the
authority to create additional conditions. And even assuming that the
Legislature had intended to do so, that delegation of power would fail
because the Legislature has not provided guidelines informing the Board
how, when, or under what circumstances, it may create additional
conditions. See id.
Despite the missing language and potential problems
concerning the delegation of authority if read alternatively, the district
court found justification for its conclusion that the Board may establish
additional conditions in the language of NRS 213.1243(8): "[Al" sex
offender who commits a violation of a condition imposed on him or her
pursuant to the program of lifetime supervision is guilty of a category B
felony." (Emphasis added.) Presumably, then, the district court reasoned
that if the Legislature did not intend to permit the Board to add
conditions, then it would have more narrowly provided in subsection 8 "a
condition imposed ... pursuant to NRS 213.1243," rather than "a
condition imposed . . . pursuant to the program of lifetime supervision."
We conclude that, although the Legislature could have more narrowly
tailored the language, "a condition imposed. . . pursuant to the program of
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lifetime supervision" necessarily encompasses only the conditions
enumerated by the Legislature in NRS 213.1243. Thus, it cannot be
concluded from a plain reading that the Legislature extended authority to
the Board to create additional conditions, rather than for the Board to
create a program including the conditions enumerated in NRS 213.1243 to
be carried out by the Division's officers.
Because the Board has no authority to impose conditions not
enumerated in NRS 213.1243, the nonenumerated conditions the Board
imposed on McNeill were unlawful, and McNeill did not violate the law
when he failed to comply. It is not, however, clear which condition(s) the
jury found McNeill violated: refusing to submit to a urinalysis, failing to
report, failing to have his residence approved, failing to cooperate with his
supervising officer, failing to maintain full-time employment, failing to
abide by a curfew, and/or being terminated from his sex offender
counseling. Only one of these purported violations is enumerated in NRS
213.1243: failure to have a residence approved. See NRS 213.1243(3).
And it cannot be concluded that the jury found that McNeill failed to have
his residence approved because the charging document and jury
instructions allowed the jury to find him guilty based on one or more of the
identified violations.
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Because the Board-imposed conditions were unlawful, and any
Board violations cannot be separated from any NRS 213.1243 violations,
we reverse the judgment of conviction and remand for a new trial on the
violation of failure to have a residence ap roved. 3
Douglas
We concur:
. C A.
Parraguirre
Hardesty
akta
Cherry
Saitta
Gibbons
Pickering •
3 In
light of this ruling, we need not address McNeill's remaining
arguments on appeal.
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