Ybarra (Perfecto) v. State ( 2013 )

 Legislature is empowered, within constitutional limits, to define crimes
and fix punishments, and this court should not "encroach upon that
domain lightly." Schmidt v. State, 94 Nev. 665, 668, 584 P.2d 695, 697
(1978). Consistent with this separation of powers, this court has held
that, regardless of its severity, 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). Ybarra's claim
that the mandatory nature of Nevada's sentencing scheme makes it cruel
and unusual "has no support in the text and history of the Eighth
Amendment," Harmelin, 501 U.S. at 994, and "outside the context of
capital punishment, successful challenges to the proportionality, of
particular sentences will be exceedingly rare," Solem v. Helm, 463 U.S.
277, 289-90 (1983) (internal quotation marks, emphasis and alterations
omitted). Ybarra's sentence of consecutive terms of life in prison, each
carrying a minimum parole eligibility after ten years, falls within the
parameters provided by the relevant statutes, see NRS 176.035(1); NRS
200.366; NRS 201.230(2), and the sentence is not so unreasonably
disproportionate to the gravity of the offenses as to shock the conscience,
see CuIverson, 95 Nev. at 435, 596 P.2d at 221-22; see also Griego v. State,
111 Nev. 444, 447, 893 P.2d 995, 997-98 (1995), abrogated on other
grounds by Koerschner v. State, 116 Nev. 1111, 13 P.3d 451 (2000);
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Adaway v. State, 902 So. 2d 746, 747-53 (Fla. 2005). Therefore, we
conclude that NRS 201.230(2) does not impose cruel and/or unusual
punishment.
Second, Ybarra contends that the district court abused its
discretion by agreeing with Ybarra's stipulation to serve consecutive life
sentences for sexual assault and lewdness with a child under the age of
fourteen years. This court will not disturb a district court's sentencing
determination absent an abuse of discretion. Randell v. State, 109 Nev. 5,
8, 846 P.2d 278, 280 (1993). Ybarra has not demonstrated that the district
court relied on impalpable or highly suspect evidence when it agreed with
Ybarra's stipulation. See Chavez v. State, 125 Nev. 328, 348, 213 P.3d 476,
490 (2009). Therefore, we conclude that the district court did not abuse its
discretion at sentencing.
Third, Ybarra contends that the district court's imposition of a
$10,000 fine at sentencing amounts to cruel and/or unusual punishment
because he was indigent at the time of sentencing. See U.S. Const. amend.
VIII; Nev. Const. art. 1, § 6. Ybarra admits that he receives a monthly
Veteran's Administration benefit of $125 and has failed to demonstrate
that he will not receive a portion of this benefit while he is incarcerated.
See 38 C.F.R. § 3.665(d) (2013) (discussing the amount payable to
incarcerated beneficiaries). Furthermore, Nevada law provides a
procedure for Ybarra to request a reduction of his fine or installment plan
based on his financial ability to pay. See NRS 176.085; see also Gilbert v.
State, 99 Nev. 702, 708, 669 P.2d 699, 702-03 (1983). We conclude that
Ybarra's fine does not amount to cruel and/or unusual punishment. See
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Culverson, 95 Nev. at 435, 596 P.2d at 221-22; see also Harmelin, 501 U.S.
at 1000-01 (plurality opinion).
Having considered Ybarra's contentions and concluded that he
is not entitled to relief, we
ORDER the judgment of conviction AFFIRMED.
, J
Hardesty
PGA>
Parraguirre
J.
cc: Hon. Jerome Polaha, District Judge
Karla K. Butko
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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